The Supreme Court’s enigmatic “shadow docket,” explained

“Last week, the Supreme Court handed down a 5-4 decision blocking a lower court’s order requiring a California jail to take several steps — such as socially distancing inmates and providing them with “hand sanitizer containing at least 60% alcohol” — to prevent the spread of Covid-19 within the jail.

I have no idea why the Supreme Court would do such a thing, and neither does anyone else who isn’t a justice or one of their closest advisers.

The reason for our ignorance is that the five justices in the majority — all five of the Court’s Republicans — didn’t bother to explain their decision. The entirety of the Court’s order in Barnes v. Ahlman is a single paragraph of boilerplate language, informing the reader that “the district court’s May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition” of a petition asking the justices to fully review this case.

Hundreds of incarcerated people could become infected with a potentially deadly disease. And the Supreme Court won’t even tell us why.

Welcome to the Court’s “shadow docket.”

The term “shadow docket” was coined by University of Chicago law professor William Baude in an influential 2015 article. It refers to “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Often these orders are handed down without any explanation from the majority, or without much advance notice from the Court. Frequently they are handed down on Friday evenings, after at least some of the Supreme Court press corps are already a couple of beers into their weekends.

Because shadow docket cases are often released without a majority opinion explaining the Court’s reasoning, they have less impact on legal doctrine than most ordinary decisions. Judges are bound by the Court’s majority opinions, but a lower court judge can’t follow an opinion that doesn’t exist.

Nevertheless, the stakes in shadow docket cases — which often arise after a party files an emergency request asking the Court to block a lower court order — can be enormous. The decision in Barnes endangers the health of thousands of inmates. Other shadow docket decisions concern billions of dollars. Or they can effectively lock thousands of immigrants out of the country.”

“The Court, meanwhile, has shifted an increasing share of its output to this often inscrutable shadow docket. In the past year, Justice Sonia Sotomayor has written several strongly worded dissents warning that her colleagues are bypassing safeguards intended to prevent the Court from handing down cursory, insufficiently thought-out decisions — and that they often do so to benefit the Trump administration.” 

“Unlike cases on the Court’s regular docket, shadow docket cases receive very limited briefings and are rarely, if ever, argued before the justices. Though the justices will often discuss these cases among themselves, they frequently do so on an extraordinarily compressed schedule — leaving far less time for reasoned debate. That’s often true because shadow docket casesfrequently arise from emergency requests asking the Court to grant swift and immediate relief, meaning that the justices will only spend days or even hours pondering how to rule on such a request.” 

“There’s a common phrase within the judiciary. When a judge initially thinks a case should come down one way, but then they start writing their opinion and realize they can’t come up with a legally sound argument justifying that outcome, they say that the opinion “won’t write.” The ordinary requirement that judges explain their decisions in reasoned opinions can be a tremendous check on judicial power. It discourages those judges from ruling in arbitrary ways.

 As Margulies told me, “there are some opinions that just aren’t going to work out” once a justice has taken sufficient time to reason through how to decide the case. But if the Supreme Court pushes too many of its decisions onto its shadow docket, the justices in the majority may never figure out that their first instinct regarding how to decide a case was flawed.” 

“the Supreme Court has historically applied a strong presumption against second-guessing lower court judges when a case arrives on the Court’s shadow docket. As Justice Sotomayor wrote in a dissenting opinion in Wolf v. Cook County, one of several recent decisions where she criticized her colleagues for being too eager to stay lower court opinions, “stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”

A Supreme Court order blocking a lower court decision has historically been considered an “extraordinary” event, Sotomayor explained. But they’ve become increasingly common in the Trump years.” 

https://www.vox.com/2020/8/11/21356913/supreme-court-shadow-docket-jail-asylum-covid-immigrants-sonia-sotomayor-barnes-ahlman

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