In December 2022, the Supreme Court’s public affairs office made a discreet announcement about procedures for the end of the 2022–23 term:
For the remainder of this Term, the Court will resume its traditional practice of announcing merits opinions in open Court. Consistent with past practice, the live audio feed will be limited to oral arguments, and the audio of opinion releases will be recorded and available from the National Archives at the beginning of the next Term.
The provision about the oral announcement of opinions—no audio available until months later—is almost the only feature of “traditional practice” that survives the coronavirus pandemic and the Donald Trump years unchanged. In the past, oral argument was not live-streamed, and recordings were only made publicly available days after the session. Opinion announcements were (and still are) withheld until the following October.
These two moments—argument and announcement—mark the only occasions on which the Supreme Court, one-third of the constitutional structure of our government, even tries to explain itself to the public it nominally serves.
The Court began live-streaming oral arguments during the pandemic, and so far it has not reversed the practice. But announcements will still not be available to the public until a time when that public will no longer be paying attention. There is no logistical reason for this, and plenty of good arguments against it. Opinion announcements are among the most dramatic moments of a given term. They are not empty drama, nor are they a distraction: Such moments provide a much-needed glimpse of the Court’s mostly shrouded interior processes, and of the passions of the individual justices.
Some progressive legal scholars have coined the term demosprudence to underline that the opinion announcements are the only time that the Court’s members directly address the public. Clearly, however, the justices do not want the public to see or hear their words. This particular Court does not conceive of itself as belonging to the people.
Since Trump’s election in 2016, the Court has acquired four new justices; a new format for oral argument (formerly confined to one hour, oral argument now meanders to a conclusion when everybody runs out of steam); a new concept of precedent (previous cases are binding unless there’s something about them the new conservative majority just doesn’t like); and a new methodology for its constitutional jurisprudence (the “history and tradition”—or, more cynically, the “Look, I found something in Bracton’s De legibus et consuetudinibus Angliæ that agrees with me, case closed!”—test).
Also consequential is an unannounced procedural change: The Court makes more and more important decisions through its so-called shadow docket, in which it grants or denies orders to decide, delay, or reverse lower-court decisions. These orders are often only one sentence long and announced in written form either on regular Court days or after hours. They often include no explanation of the Court’s reasoning and do not always record individual votes. Always available to the Court for genuine emergency cases (such as last-minute appeals from death row inmates), the shadow docket has become a major way in which the new Court shapes the law and steers the lower federal courts—almost uniformly in an extreme-right direction.
This semisecret aspect of the Court is the subject of The Shadow Docket by Stephen Vladeck, a law professor at the University of Texas. As a Court observer, Vladeck is a phenomenon. He teaches constitutional law and the federal courts; he has also argued three significant cases (on military law and border security) before the Court. (Because Vladeck is six foot eight, the Court’s lectern had to be specially raised to accommodate him.) He is a contributing editor of Lawfare, the prominent national security blog, and a cohost of the National Security Law Podcast. He is also a legal analyst for CNN and a regular contributor to Slate. I suspect he is studying brain surgery in his spare time.
The Shadow Docket is a work of profound respect for a Court he plainly loves, and is intended as a warning that it is losing its way, and risks thereby forfeiting the place it has long held in American law and life. And the book places both the current “shadow” controversy and the Court itself within a history quite different from the reigning belief that the Framers had a clear vision of the Court as a check on the elected branches. Instead, beginning with Chief Justice John Marshall’s 1803 power grab in Marbury v. Madison,the Court’s history is largely a tale of an institution that is barely mentioned in the Constitution but has used ambiguity and guile to aggrandize itself.
The term “shadow docket” was minted in a 2015 law review article by the University of Chicago law professor William Baude. It refers to the Court’s “non-merits docket,” or “orders list,” cases and matters the Court resolves in whole or part without full briefing and argument, either before an eventual decision on the merits or, more problematically, instead of a fully briefed, argued, and reported decision.
Baude is a prominent conservative scholar, a former clerk for Chief Justice John Roberts, and a Federalist Society member. Those conservative credentials did not prevent Justice Samuel Alito in a 2021 speech from blasting Baude’s neologism as “a catchy and sinister term” that “is part of unprecedented efforts to intimidate the Court and to damage it as an independent institution.” (Baude is a family friend; in my experience, people find him impressive but, well, not exactly intimidating.)
Alito’s chosen term is “emergency docket,” which is at best only partially accurate. Some orders are genuine emergencies—remember death penalty appeals—but many are not. The docket is now in essence an alternative Court by which the new conservative majority can achieve its goals without explaining or, indeed, acknowledging how it is changing the law. Consider, for example, a 2022 order in Louisiana v. American Rivers, in which a district court set aside a Trump-era regulation making it harder for states to review projects within their borders that might worsen water pollution. After the lower court, pending full review, had reinstated the regulation that had been in force for half a century, a group of conservative states asked the Supreme Court to impose the newer Trump regulation on an emergency basis while appeals were pending. Without explanation, the Court did so. In a pointed dissent, Justice Elena Kagan noted that “applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief.” The success of their maneuver, she wrote, “renders the Court’s emergency docket not for emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument.”
Revealingly, the lineup in American Rivers was 5–4—with Roberts providing the fourth dissenting vote. As Vladeck notes, the growth of the shadow docket has marched along with radical internal polarization of the Court, to the point that the deeply conservative chief, always alert to the institutional interests of the Court, is now a party to some very sharp “liberal” dissents.
Shadow orders can take a number of forms: “summary” reversals or affirmations of lower-court opinions (making a final decision without waiting for briefs or argument); “vacatur” of those opinions (wiping them away as if they had never been written); “certiorari before judgment” (taking cases before lower courts have had a chance to rule); or granting or denying a stay or an injunction (preventing further proceedings until a specific issue can be decided). None of these need even a word of explanation. They may also contain a brief opinion explaining the majority’s rationale—or no explanation other than an anguished dissent by the losers.
The Shadow Docket is an important book for anyone who wants a deep understanding of the way the post-Trump Court is moving to reshape the law. Vladeck is a clear and engaging writer; non-lawyers will appreciate his skill at making as clear as possible some intricacies of appellate jurisdiction. There’s still some complexity to climb, but the important thing to remember is that the Court has vastly expanded its use of these orders in cases that are not emergencies, and that, as Vladeck points out, have a distinctly partisan valence.
No one designed the shadow docket; indeed, as Vladeck shows, in the years after adoption of the Constitution, the Court had so little to do that the first chief justice, John Jay, grew bored and resigned to run for governor of New York. In many “federal question” cases, it was a true court of appeals; litigants who lost in lower courts had a right to bring their cases before the high tribunal, which was required to hear and decide them. Since the Court first assembled in New York on February 1, 1790, and its legal jurisdiction started to expand, however, the justices have complained about their workload. Slowly, in 1891, and then in 1925, Congress gave the Court greater control by inaugurating the “writ of certiorari,” by which the Court could take on a case or decline it. In 1988, at the behest of new Chief Justice William Rehnquist, Congress gave the Court almost complete control over its caseload.
It should surprise no one (least of all a reader of the Washington Monthly) that when a government bureaucracy is given a veto over its own inbox, its workload often declines precipitously. For much of the 20th century, it was not unusual for the Court to allow full briefing and argument, and produce full opinions in, as many as 200 cases per term. By 2005, the average had fallen to 80. In the 2021–22 term, the total was less than 60.
Meanwhile, the “non-merits docket” was mostly used for genuine emergencies such as death appeals; it came into full sinister bloom only with the advent of the Trump administration. Between October 2019 and June 2022, Vladeck notes, the Court granted a total of 60 emergency petitions for relief—the most since the 1980s. But unlike the earlier period, comparatively few of these were death appeals, and many (like American Rivers) did not represent any sort of emergency at all. After the confirmation of Justice Amy Coney Barrett created a five-vote hard-right majority, the practice gathered momentum: for example, Vladeck notes, in John Roberts’s first 15 years as chief, the Court granted a total of four of the extreme orders called “injunctions pending appeal”; after the ascent of Barrett in 2020, it granted six in five months.
Over the years, the Court has developed a formula for determining when it should intervene in litigation below. One factor it is supposed to consider is whether the party asking the Court to jump in will suffer “irreparable injury” if the case is not stopped in its tracks. Vladeck was among the first commentators to note that “irreparable injury” has taken on a new meaning for this Court; rather than, let’s say, destruction of property or immediate financial loss, it now often refers to the indignity government officials suffer when forced to delay implementing their favored policies until courts can decide whether they are legal. Under Trump, the Court was quite tender-minded about the sufferings of government, insisting, among other things, that the administration be allowed to proceed with questionably legal construction of the border wall on private property and that the “travel ban” be allowed to take partial effect, with its disruption of families, before final adjudication of its constitutionality. With the advent of the Biden administration, the dreadfulness of this sort of delay has begun to seem less obvious to the conservative majority. Indeed, the partisan background of shadow docket cases seems like their dominant determining factor. “It’s difficult to dismiss as coincidence,” Vladeck writes, “that the Court’s interventions in immigration cases, for example, generally allowed President Donald Trump’s policies to go into effect and generally blocked President Joe Biden’s policies.”
For years, the Court and lower courts understood that shadow docket orders have no “precedential value”—as nominally temporary orders pending resolution of cases, they are not binding on lower courts. To the new conservative majority, however, “even unsigned Emergency orders … were to be given precedential effect by lower courts, despite a long-standing tradition to give them no such weight,” Vladeck writes. One such decision, Tandon v. Newsom, completely rewrote the law of “free exercise of religion,” tilting the doctrine in favor of religion—a decision that Vladeck calls “indefensibly lawless.”
Conservatives dismiss criticism as sour grapes. Alito himself, in an October 2021 speech at Notre Dame Law School, noted that the Court has always had a non-merits docket and suggested that criticism of its present state must thus be offered in bad faith. But as Vladeck demonstrates, the current muscular docket bears only a superficial resemblance to that of even a decade ago. Second, Alito insisted that shadow docket orders are preliminary and procedural, and thus do not decide important constitutional issues. This claim is easily refuted by looking at Whole Woman’s Health v. Jackson, the challenge to Texas’s radically novel “Heartbeat Bill.” That bill banned abortions after about six weeks, and allowed private citizens to sue anyone who helped a woman obtain one after that.It flatly contradicted Planned Parenthood v. Casey—a major precedent of the Court that had not, at that time, been overruled. Having lost in lower courts, abortion providers sought an emergency injunction to block the bill from going into effect before the constitutional issue could be resolved. Without explanation, the Court delayed its decision until 24 hours after the law took effect. In a brief note, the majority wrote that the bill’s jurisdictional provisions were just too darn complicated for it to figure out, so it could go into effect.
Alito insisted that the Court’s brief order did not actually nullify Casey. After all, he noted, the opinion itself said, “we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law.” But Alito’s claim is almost impudently disingenuous: As Vladeck writes, the order’s prim language “made little difference to the millions of Texans who, in an instant, could not obtain a constitutionally protected abortion anywhere in the state.”
Other observers have claimed that the increased number of shadow docket decisions arises out of the growing practice of “nationwide injunctions.” Most of the Court’s shadow orders, however, do not come in such cases. The other justification, voiced by conservative legal commentators in the Trump years, is that (as one put it to me in private conversation) “the lower courts are out of control.” Early in the Trump years, conservative publicists coined the term “judicial resistance” to suggest that lower-court judges were deliberately thwarting Trump initiatives for partisan or ideological reasons. Though this is rarely made explicit, the current Supreme Court majority clearly distrusts Democratic appointees to the lower courts.
Justice Clarence Thomas, for example, wrote (and Trump appointees Neil Gorsuch and Brett Kavanaugh joined) a remarkable separate opinion that directly questioned the motives of District Judge Jesse M. Furman, an Obama appointee, who had blocked the imposition of a citizenship question on the 2020 Census form: “I do not deny that a judge pre-disposed to distrust the Secretary [of Commerce, who conducts the census] or the administration could arrange [the] facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web,” Thomas wrote. (There seems to be, it must be noted, less apparent worry on the right about “judicial resistance” now that the tool of the nationwide injunction is in the hands of Trump appointees for use against Biden initiatives.)
Finally, some conservatives dismiss criticism of the shadow docket by suggesting that critics are liberal ideologues who object to the Court’s conservative turn. Vladeck responds, “I can’t speak for others, but I’ve been critical of the Court’s shadow docket behavior—and I wrote this book—not because I want to delegitimize the Court, but because I fear that the Court is delegitimizing itself, and that not enough people—the justices included—are caring.”
By May of this year, the Court’s self-delegitimization had escalated from a mere crisis into what looks more like a death spiral, an institutional collapse of which the irresponsible and unaccountable use of its shadow docket power is only one aspect among many. Indeed, the most innocent explanation of the situation would be that the Court’s majority is so ethically challenged, internally divided, jurisprudentially sloppy, and ideologically polarized that it cannot do a competent job despite what by historical standards is a ridiculously light workload.
The flaws in the current Court’s operation may simply betray an institution no longer able or willing to maintain its operations at a sustainable level. The general slovenliness of its judicial work may be just one result of an institutional disinclination to any sort of ethical standards, workplace competence, or public accountability. This spring we learned that, over the past decade, the justices have considered adopting a code of ethics but instead decided that, like Melville’s Bartleby the scrivener, they would just prefer not to. In 2011, the chief justice assured Congress that the justices are ethical and thus whatever they do must be all right.
In reality, meanwhile, the moral and ethical collapse at 1 First Street NE is almost beyond parody. Thomas has become a kind of domestic pet of the far-right billionaire Harlan Crow, accepting hundreds of thousands of dollars’ worth of free travel and entertainment (as well as a suspiciously favorable set of real estate transactions and prep school tuition for a family member) from a benefactor whose other possessions include a trove of Hitler memorabilia. Thomas clearly knew that he was required to disclose these gifts, and at first he did—until, following adverse comment in the press, he decided that he’d really prefer the people not know about them. Thomas’s wife, Ginni, received large payments from a legal advocacy group that regularly files briefs with the Court; Leonard Leo of the Federalist Society, her benefactor, took care to prevent the public from knowing that the money went to a justice’s spouse. Thomas also couldn’t cite the correct name of the real estate enterprise that was paying him as much as $100,000 in annual proceeds; he won’t discuss his failure to recuse himself from a case in which the documents at issue proved deeply embarrassing to his wife.
These offenses are rank and plainly intentional. Ordinary government employees who consciously lie on official documents may face prison, not festschrifts in their honor at right-wing think tanks. In any previous era, Thomas’s resignation would have been on Roberts’s desk weeks ago.
Gorsuch was also oddly stumped by a disclosure form that, properly filled in, would have revealed that a group headed by a big-firm lawyer had bought some previously slow-to-sell real estate from him immediately after he went on the Court. (Gorsuch also has a billionaire patron, the oil and gas magnate Philip Anschutz.) Alito was lavished with hospitality by real estate investors from Ohio as part of a carefully designed influence operation by a Christian right organization that used bribe-level contributions to the Supreme Court Historical Society as a way to befriend and lobby the right-wing justices.
The Court’s leak problems also suggest that some inside the institution no longer believe in either its integrity or its autonomy. Breathless reports suggested that the May 2022 leak of Alito’s draft opinion overturning Roe v. Wade was unprecedented; though it was the first time in memory that an actual opinion was leaked, Dobbs v. Jackson Women’s Health Organization wasin fact the fourth major leak in the past decade or so—that we know of. In 2012, someone inside the Court leaked information to conservative media in an apparent attempt to pressure Roberts to provide a fifth vote to overturn the Affordable Care Act. In 2014, a Christian right organization knew the result in Hobby Lobby before it was announced; according to at least one person involved, the leaker was Alito. During the 2019–20 term, as Joan Biskupic reports in her new book, Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences, someone apparently on the Court’s conservative side leaked internal deliberations in a case about the application of the Civil Rights Act to sexual orientation and gender identity cases. The aim was apparently to pressure Roberts and Gorsuch, who had strayed from conservative orthodoxy, to switch their votes and thus flip the result—an effort that failed.
Not to worry, though: After the Dobbs leak the next year, the Court, with the punctilio of Peter Sellers’s Inspector Clouseau, announced an “investigation” by the Court’s marshal. Months later, the marshal majestically produced—hey, presto!—nothing at all. This was hardly surprising, since “investigators” did not even apparently trouble the justices themselsves with on-the-record interviews.
Meanwhile, the conservative majority lectures the nation on the people’s absolute obligation to respect the Court and obey its orders without reservation. To borrow a phrase from the English writer Evelyn Waugh, watching the post-Trump majority deface a beloved American institution “is to experience all the horror of seeing a Sèvres vase in the hands of a chimpanzee.”
Vladeck expresses a more muted version of that horror. “Our constitutional republic needs a legitimate Supreme Court, even one staffed by a majority of justices with whom many of us routinely disagree,” Vladeck warns; indeed, “democracy itself may depend upon a Supreme Court [that is] widely perceived to be legitimate.”
The hope for reform is Congress, which has authority over the Court’s jurisdiction and, to some extent, its operations. Much of the Court’s freedom from hard work and accountability results from changes Congress has made over the years at the justices’ behest. Lawmakers could change the procedures and requirements of emergency orders by statute—requiring, for example, a higher majority for certain emergency orders or requiring the Court to explain itself when it steps prematurely into a case. It also could impose a binding code of ethics on the Court and create an actual enforcement mechanism (the lower federal courts manage to remain independent even though they have both).
But the likelihood of such reform is, for the moment, relatively remote. “Since 1988 (if not before), Congress has done far too little to assert its institutional authority over the Supreme Court,” Vladeck notes. The best hope for saving one failing institution thus lies in the hands of another. The somber likelihood is that the Court’s internal dysfunction will worsen, and even turn septic, before our system of government acts to save itself.
If it does.