In criticizing the Supreme Court’s use of the “shadow docket”—where it has issued major rulings this year, mostly in Trump’s favor, without full briefing, oral argument, written opinions, reasoning, or even named authors—The New York Times Editorial Board says it is troubled but insists it would be “unfair” to call the Court “a mere extension of Mr. Trump.” Why unfair? There is no doubt about it. The justice business has now descended into the bargain basement.
While the shadow or emergency docket is supposed to be used where there is a real emergency, and a party may suffer “irreparable harm” if the court does not act immediately, the docket has become an expedient for the Court’s down-and-dirty rubberstamping of even the most obviously illegal of Trump’s sweeping executive orders.
Trump has often boasted that he has a supermajority MAGA court that gives him “big wins.” In this case, he’s not exaggerating. The justices have used shortcut procedures on their shadow docket to issue decisions handing Trump most or all of what he had asked for in hot-button cases dealing with immigration, transgender individuals in the military, the independence of government agencies, and even previously incontestable interpretations of the Constitution.
The shadow docket rulings in Trump’s favor are supposed to be temporary and provisional. In outcome, they have become a mark of Cain, allowing the president to pursue his flagrantly illegal policies indefinitely and even irreversibly.
It may be that institutionalists on the Court will do anything to avoid a constitutional confrontation, no matter how much over the top the executive’s conduct is. However, the shadow docket allows them to roll over anonymously, in lock step, and without opinion or reasoning.
University of Chicago law professor William Baude first coined the term “shadow docket” in a 2015 article in the NYU Journal of Law & Liberty. Although Baude probably failed to grasp at the time how apt the sobriquet would be, he defined the term as “a range of orders and summary decisions that defy its normal procedural regularity.” Decisions on the shadow docket happen in the shadows.
It appears Baude never dreamed that the excessive use of the “shadow docket” might be a dagger to the heart of Supreme Court independence.
Baude’s critique of the shadow docket is scholarly. He argues that many of the court’s orders lack the transparency we have come to appreciate in the merits cases, and second, that summary reversal orders have become an exception that swallows the rule. Indeed, the matrix for summary reversal cases (“who loses, and who wins, who’s in, who’s out”) remains a mystery, beclouding all ability to tell whether the Court’s selections are fair.
The legal pundits have gorged on Baude’s use of the catchword “shadow.” The term reminds us, who are old enough, of the 1937-to-1954 radio detective drama series “The Shadow,” where the hero had learned in the Orient the secret of how to cloud men’s minds so they cannot see him as he battled crime. Only the Shadow knows “what evil lurks in the hearts of men.”
Justice Ketanji Brown Jackson has been the most outspoken critic of the shadow docket and its increasingly convenient procedural availability for the justices to deliver bargain-basement endorsements of Trump’s agenda without explanation or legal rhyme or reason.
“This fly-by-night approach to the work of the Supreme Court is not only misguided,” Jackson wrote. “It is also dangerous.”
Her colleague Justice Elena Kagan has quickly agreed:
The Times refrained from concluding what most Americans long ago concluded: that the Court, which includes three Trump appointees, has become a rubber stamp for Donald Trump. When Trump campaigned in 2016, he promised to appoint justices who would “automatically” overrule Roe v. Wade. And he did, and they did.
It argues by way of mitigation that it ruled against him in his “ludicrous claims of election fraud” in 2020, and the ruling that he couldn’t transfer migrants to a prison hellhole in El Salvador without notice and hearing. But in both cases, the court had nowhere to go but to reject Trump’s claims, lest its rulings not survive the laugh test. And in the immigration matter, the court timidly ordered the government to “facilitate” the return of the illegally deported migrants to the United States, not to “effectuate” their return.
This against Trump rulings pale compared to the 12 decided applications on the shadow docket this year involving Trump’s sprawling executive orders, with all but two going Trump’s way.
A decision in a merits case is the apparent product of great care and lengthy deliberation. In recent terms, the median time from when a party first sought Supreme Court review to when the justices ruled was more than a year.
Such cases feature two sets of briefs and oral argument, discussion of the case at conference, and exchange of draft opinions, often including concurrences and dissents—no rush to judgment here. There is the appearance and the reality of full consideration.
Shadow docket applications are another matter. Excluding death penalty cases, the median time between first filing and the court’s decision is about three weeks.
The Times points out, “the administrations of George W. Bush and Barrack Obama, combined, asked the Supreme Court for emergency relief only eight times in 16 years,” while Trump, who in the four years of his first term applied for emergency relief 41 times, has applied for shadow relief 21 times since January, an astonishing statistic so immutable it cannot get anyone fired for announcing it.
As Congresswoman Jasmin Crockett recently said in another context, “It doesn’t take an Einstein to see that the math ain’t mathin’ here.”
The evidence that the Court had become totally political is the box score. Of the 22 decided applications decided by the Court this term on their shadow docket involving Trump’s executive orders, Trump won 20 and lost maybe two. None of these orders is necessarily wrong, but they raise questions of procedural regularity—i.e., of the consistency and transparency of the Court’s processes.
But, as any lawyer will tell you, procedural regularity begets substantive legitimacy.
Also, the Court’s behavior has been supremely partisan. Its inconsistency is astounding. As Baude has pointed out, it is anomalous that the Court outlawed the nationwide injunction in the birthright citizenship case. However, it refused to disturb it when it had a chance during the Bush, Obama, or Biden administrations. The double standard is self-evident. The court intervened to lift 77 percent of lower-court temporary restraining orders and preliminary injunctions against the Trump administration, while lifting 14 percent of those against the Biden administration.
Who knows whether the Court’s behavior is supremely partisan? Perhaps the Shadow knows.
The post The Shadow Knows appeared first on Washington Monthly.
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