Out of the shadows

Nuts and Bolts is a recurring series by Stephen Wermiel providing insights into the mechanics of how the Supreme Court works.

Discussion of the Supreme Court’s “shadow docket” is everywhere. But why exactly is this area of the court’s work attracting so much attention, and why now?

Explanations vary. But at least one clear answer lies in the types of issues the justices are deciding, as well as the frequency of and the way in which they are handling these requests. The court has always had an emergency docket, but – with some notable exceptions to be discussed below – historically such cases have been fewer and more “routine.”

So what is this thing?

Let us begin with what this docket is. Some court commentators count on this docket everything the court does that is not a full written decision after briefing and oral argument. This would include hundreds of requests to extend deadlines for filing petitions and briefs and requests for stays of execution in death penalty cases. For this column, however, we are only considering requests to stay the actions of lower state and federal courts.

Specifically, in such cases a party files a lawsuit in a lower court, for example challenging an executive order of the president. A lower court judge then issues a temporary restraining order or a longer-lasting injunction that halts the president’s action. The government (typically) asks an appeals court to put the judge’s order on hold to allow the president to continue his policy; if the appeals court declines, the government then asks the Supreme Court to intervene, or on occasion may jump over the appeals court and go directly to the justices.

In the Supreme Court, the request goes initially to one justice (known as the “circuit justice”), each of whom is assigned to handle requests from one or more of the 13 federal appeals courts. A justice may issue a brief stay, known as an “administrative stay,” to allow time for the other side to respond, but – at least in cases involving high-profile issues – then typically the individual justice will refer the matter to the full court. Sometimes the justices may discuss requests for stays in their conferences, but it is also common for the requests for stays to be resolved by an exchange of memos. Finally, the court issues an order granting or denying the request, usually without any explanation of why, although individual justices may write their own separate explanations.

Next is terminology. The term “shadow docket” was coined by University of Chicago law professor William Baude in a 2015 law review article because such cases were often decided with little transparency or notice. Not long after, the phrase “emergency docket” also became popular to describe this, because, as noted above, it deals with requests for emergency action by the court. In this column I will refer to it as the “interim docket,” however. This is because the relevant requests made to the court are not all styled emergencies, but all do involve a request for temporary or interim relief while a case is making its way through the judicial system.

And then there is importance. What propels the interim docket into the spotlight more than anything else is the increasingly large number of requests by the Justice Department to allow President Donald Trump’s policies to remain in operation after they have been blocked by lower federal courts. There is no official statistical record for such applications, but Georgetown law professor Steve Vladeck has written that during the 16 years of the presidencies of George W. Bush and Barack Obama, the Justice Department only asked the Supreme Court for relief a total of eight times. During the four years of the Biden presidency, the Justice Department made 19 requests. In Trump’s first term, his Justice Department made 41 requests for relief, according to Vladeck. By comparison, according to one unofficial count, the Trump Justice Department has already asked for relief from the Supreme Court 32 times in slightly less than one year.

These numbers do not entirely account for why the court is receiving so many more of these requests. One major reason is that Trump has issued more far-reaching executive orders than previous administrations, and these have generated hundreds of lawsuits. Federal courts have, in turn, issued more stays to halt the president’s actions, finding many of Trump’s orders to push the boundaries of the Constitution and of federal laws. And this proliferation has resulted in more action at the Supreme Court on its interim docket.

What is being decided?

It is not only this dramatic change in the volume of requests that has catapulted the interim docket into public debate, but also the nature of the issues being decided and the manner of decisions.

In the past, the interim docket was frequently dominated by death penalty cases. A state would set an execution date for a convicted inmate. The condemned prisoner’s lawyers would battle all the way to the Supreme Court seeking a stay of execution. This practice continues with frequent requests to the court for stays, and it often leads to dramatic results when an execution takes place soon after the justices deny a stay.

There have been some famously historic moments in capital cases. On June 17, 1953, Justice William O. Douglas stayed the execution of convicted spies Ethel and Julius Rosenberg. Two days later, the full court threw out the stay, overruling Douglas, and the Rosenbergs were killed in the electric chair in New York. (Douglas was once again at center stage on Aug. 4, 1973, when he issued an emergency halt to the U.S. bombing of Cambodia. The court overruled him later the same day by a vote of 8-1.)

But this docket has rarely been the center of attention the way it is today. This is because today’s interim docket requests, along with being more frequent, involve the foundations of government and civil liberties – from citizenship status to deportations to firing government leaders and employees to cutting off federal funds and halting long-established government programs.

And in some two dozen cases, lower federal courts have blocked executive orders and other actions by Trump in his second term. With a remarkable degree of consistency, the Supreme Court has then issued emergency stays allowing those same Trump policies to remain in operation pending further appeals.

Criticisms and controversies

In addition to the high-stakes impact of these orders, various aspects of this process have engendered public controversy and debate. When the court makes decisions on the interim docket, it is usually through a terse order without an opinion or, if there is one, little to no explanation. With increasing frequency, individual justices explain their own approach in separate concurring opinions, but these statements speak only for those individuals and do not explicate the court’s reasons. Dissents are also on the rise; sometimes they fault the impact of the court’s action, and at other times they take issue with the use of the interim docket to make decisions. Because virtually all of these interim orders today are decided by the court’s conservative majority and the dissents by liberal justices, the separate opinions take on a strong ideological overtone, making the rulings look political, not just legal.

Moreover, critics say the court has departed from the practice of interim orders being largely procedural and, because they lack any legal reasoning, not serving as precedent to apply to other cases. During the COVID-19 pandemic, the court issued a handful of rulings that, in the course of staying health emergency orders issued by a few governors, advanced the First Amendment’s guarantee of free exercise of religion and curbed the health and safety powers of states. In August, Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, wrote a partial concurrence/partial dissent accusing a federal district judge of disregarding the court’s order in an earlier ruling on the interim docket. Gorsuch admonished, “Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them.”

In a rare move, some federal judges fired back, telling the New York Times in October that the court was creating uncertainty with the frequent, unexplained orders on the interim docket and it had been previously unclear if these orders counted as precedent.

Finally, the justices themselves have fanned the flames of controversy, disagreeing with one another over whether the interim docket poses a problem and, if so, what to do about it. In a dissent from a July order allowing Trump to fire the Democratic members of the Consumer Product Safety Commission, Justice Elena Kagan noted that “[t]he majority has acted on the emergency docket—with ‘little time, scant briefing, and no argument’—to override Congress’s decisions about how to structure administrative agencies so that they can perform their prescribed duties.” The other liberal justices have issued similarly passionate dissents.

Several years ago, Justice Samuel Alito criticized the use of the term shadow docket itself. In a speech at the University of Notre Dame, Alito said reporting about the shadow docket by the news media created the impression of the court “having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”

In any event, one thing is clear: The debate over this docket will continue for weeks and months (if not years) to come, especially as the court leans even further into this method of handling requests for action.