“In April, the U.S. Supreme Court voted 5–4 to reinstate an Environmental Protection Agency rule promulgated during the Trump administration that had been vacated by a lower court. Why did the Supreme Court reinstate the rule? The majority offered no explanation. Nor did it technically need to do so. The case, Louisiana v. American Rivers, was decided on an emergency basis. Without receiving merits briefing from the parties and without holding oral arguments, the majority simply granted a motion to stay the lower court’s decision. And that was that.
Critics have dubbed this sort of emergency action the “shadow docket.” It is, in the words of University of Chicago law professor William Baude, “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Foremost among the shadow docket’s foes is Justice Elena Kagan, who dissented in American Rivers, joined by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. “The Court goes astray,” Kagan declared. The emergency docket has become “only another place for merits designations—except made without full briefing and argument.”
Kagan had a point. As George Washington University law professor Richard J. Pierce Jr. put it, “no one can read the opinion unless the court writes it. That is the problem with the shadow docket.” The outcome in American Rivers may have been beautifully reasoned and correctly reached. But we have no way of actually knowing that—let alone of fully judging the outcome for ourselves— because the majority offered zero rationale.”
“in many ways, the Supreme Court’s conservative revolution is already here: The court hasn’t been this ideologically tilted in almost 100 years. Capturing the full breadth of this shift is difficult because the metrics we use to measure the court’s ideology are driven by hard-to-track factors like the types of cases the court takes up. For the first time in decades, too, a single justice isn’t holding the reins. The conservative justices can now assemble a majority more easily, giving them the power to push the court even further right.
That power may take some adjusting to — for both the public and the justices. The past term showed that there will still be plenty of room for disagreement on the precise path forward. One example was a high-profile religious liberty case where the most conservative justices took their fellow GOP appointees to task for issuing a ruling they saw as too timid. And the main priority of the liberal justices, now distinctly in the minority, appeared to be damage control. Moreover, some big decisions were taking place outside the public eye.”
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“According to the Supreme Court Database, 60 percent of all decisions last term went in a conservative direction, as well as 59 percent of close decisions — which is to say, decisions in which the minority side had three or four votes. That makes the court’s previous term the most conservative term since 2008”
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“Increasingly, too, the justices are making big decisions without fully explaining their reasoning, through cases that have emerged through the court’s “shadow docket,” where the justices are asked to rule quickly, without the extensive legal briefing or oral arguments that happen in normal Supreme Court cases. Sometimes, these orders are only one sentence long. And the justices don’t have to say how they voted or why.
Normally, this swiftness and secrecy isn’t especially newsworthy because the rulings that come out of the shadow docket just aren’t that significant. But that has changed in recent years. Some of the court’s biggest rulings in the past year — including its decision to strike down COVID-19 restrictions on religious gatherings and its decision to allow a highly restrictive abortion law to go into effect in Texas — came out of the shadow docket.
The shadow docket is very difficult to track, for obvious reasons — it’s hard to know what the justices are even doing.”