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We're hosting a symposium on the Supreme Court's shadow docket. Click here to follow along.

This week at the court

By on Oct 25, 2020 at 12:00 pm

On Friday, the justices will hold their October 30 conference.


Four days after the justices left in place a ruling by the Pennsylvania Supreme Court that requires election officials in that state to count mail-in ballots received within three days after Election Day, Nov. 3, Pennsylvania Republicans returned to the Supreme Court. This time, rather than asking the court to put the state supreme court’s ruling on hold, they asked the justices to rule on the merits of the case – and to do so before Election Day. And with the Senate set to vote on Monday night on the nomination of Judge Amy Coney Barrett to fill the vacancy left by the death of Justice Ruth Bader Ginsburg, there could be nine justices to consider, and eventually vote on, the Republicans’ request.

The dispute now back before the Supreme Court began when the Pennsylvania Democratic Party filed a lawsuit that challenged parts of the state’s absentee-ballot system in light of the COVID-19 pandemic. Relying on a provision in the state’s constitution, the Pennsylvania Supreme Court extended the deadline for mail-in ballots until Nov. 6. Ballots that are clearly postmarked after Election Day would not be counted under the Pennsylvania court’s ruling. Ballots postmarked on or before Election Day, and ballots with no postmark or an unclear postmark, would be counted if received by the new deadline. Continue reading »

This article is part of a symposium on the Supreme Court’s shadow docket.

Edward B. Foley holds the Ebersold chair in constitutional law at Ohio State University, where he also directs the election law program. His latest book is Presidential Elections and Majority Rule.

The truly important decision in Bush v. Gore as a practical matter was not the merits ruling released on Tuesday, Dec. 12, 2000, but instead the stay decision issued the previous Saturday, Dec. 9. That stay surely ranks among the most consequential shadow-docket rulings the Supreme Court has ever issued. Another plausible contender, at least among election cases, is the in-chambers stay that Justice Hugo Black granted to seal Lyndon B. Johnson’s victory in the race that propelled his career into the Senate — a story vividly told with all its inherent drama in Robert Caro’s award-winning Means of Ascent and summarized for its historical relevance in relationship to Bush v. Gore in Ballot Battles.

The Dec. 9 stay is what stopped the Florida recount and made it impossible to complete a recount by the so-called safe harbor deadline, the date by which a state must complete its procedures for counting ballots in a presidential election if the state wishes to take advantage of the congressional promise to accept as “conclusive” the result of those procedures. The deadline proved decisive when it came time to determine whether Florida would have another chance to resume the recount — the answer was no, according to the Supreme Court’s majority in the Bush v. Gore merits decision — but the clock would not have run out if the court had been willing to let the recount finish over the weekend and then see if a remedial adjustment in the vote totals might be needed. Continue reading »

This week we highlight cert petitions that ask the Supreme Court to decide, among other things, the filing deadline for attorneys’ fees under the Individuals with Disabilities Education Act and whether Georgia’s burglary statute qualifies as a prior conviction under the Armed Career Criminal Act.

Richardson v. Omaha School District concerns the deadline that parents face in seeking to recoup their attorneys’ fees after prevailing in administrative proceedings under the Individuals with Disabilities Education Act. The IDEA offers states federal funds in return for providing a “free appropriate public education” for all students with disabilities. The IDEA also allows parents to initiate a “due process hearing” before a state or local IDEA hearing officer in order to enforce that promise. Parents who are “aggrieved” after these administrative proceedings have 90 days to seek judicial review, unless state law provides otherwise. Parents who prevail in the administrative proceedings may seek attorneys’ fees – but the statute does not specify any filing deadline. Courts divide over the proper deadline. Some circuits consider the fees as ancillary to the underlying educational dispute. They borrow the deadline for judicial review of IDEA administrative merits decisions, which in different states ranges from one to four months. Other circuits consider the fees as independent actions; they apply deadlines that apply for statutory violations, which could be years. In this case, Chad and Tonya Richardson waited months after the administrative decision before seeking attorneys’ fees – because, their petition claims, they were preoccupied with concerns that their child was being bulled. Their action came too late in the U.S. Court of Appeals for the 8th Circuit, which requires the shorter deadline. In their petition, the Richardsons ask the Supreme Court to review the 8th Circuit’s decision and adopt the longer deadline.

Continue reading »

Friday round-up

By on Oct 23, 2020 at 11:25 am

Yet another important dispute over election rules is up at the Supreme Court, as Republicans on Thursday asked the justices to issue an emergency order blocking an extension of the absentee-ballot deadline in North Carolina. Chief Justice John Roberts ordered the supporters of the extended deadline (which include state election officials and a nonprofit group) to file a response by Saturday afternoon. The North Carolina dispute joins two other high-profile requests for emergency relief that are currently pending before the justices: a request from Wisconsin voters to reinstate certain voting accommodations, and a request from President Donald Trump to block a grand jury subpoena seeking his financial records. The court could rule on these emergency appeals at any time. For more on the increasing importance of these types of requests, follow along with SCOTUSblog’s symposium on the shadow docket, which launched on Thursday. Continue reading »

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Two days after three judges on the U.S. Court of Appeals for the 4th Circuit urged them to “take this case up to the Supreme Court immediately,” the Trump campaign and North Carolina Republicans did exactly that, asking the justices to block an extension of the deadline for absentee ballots in that state to nine days after the election. Timothy Moore, the Republican speaker of the state’s House of Representatives, and Philip Berger, the highest-ranking Republican in the state’s senate, told the justices that they should step in immediately to stop an “unconstitutional usurpation of power,” and “to avoid the specter of a post-election dispute over the validity of ballots received during the disputed period in North Carolina.” A second filing, by the Trump campaign and the Republican National Committee, characterized the extension of the deadline as an “extraordinary attempt by an unelected state board of elections to rewrite the unambiguous terms of a statute enacted in June” by the North Carolina legislature. Continue reading »

This article is part of a symposium on the Supreme Court’s shadow docket.

Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law. His teaching and research focus on federal jurisdiction, constitutional law (especially the separation of powers), national security law and military justice.

For as long as the Supreme Court has existed, it’s had a “shadow docket” to record everything other than the justices’ formal rulings in argued cases. Indeed, the very first action the court ever took, on Feb. 1, 1790, might count as such an order — on the first day that the justices were supposed to meet, the court’s first clerk, John Tucker, embarrassingly recorded the absence of a quorum. And as Professor Ross Davies explained in 2006, from 1802 to 1839, Congress even required a single justice to come back to Washington each August for a “rump” session — to dispose of, among other things, any pending procedural matters that did not require the full court’s attention. (As Davies notes, Congress’ motives in forcing a justice back to Washington in the middle of the summer may not have been entirely benign.)

The shadow docket produced its fair share of headlines in the 20th century, too — from Justice William O. Douglas’ last-minute stay of the executions of Julius and Ethel Rosenberg in 1953, to the Cambodia bombing litigation 20 years later, to at least the first round of Bush v. Gore. But for all of these historical anecdotes, there are at least two respects in which the shadow docket has truly exploded in the last few years: the number of requests for emergency relief from the solicitor general, specifically; and the public divisiveness of the justices’ responses — both in those cases and others. Continue reading »

This article is the first entry in a symposium on the Supreme Court’s “shadow docket.”

Near the end of two meandering days of questions at last week’s Senate hearings for Amy Coney Barrett, Sen. Richard Blumenthal (D-Conn.) asked a question that probably has never been asked at any other Supreme Court nomination hearing.

“Are you aware of the Supreme Court’s – as it’s called – shadow docket?” he asked.

Barrett, who clerked for Justice Antonin Scalia, said she was. “The shadow docket has become a hot topic in the last couple of years,” she added.

Barrett is right. In fact, in just the last few months, the court has issued emergency rulings on coronavirus policies, immigration restrictions, capital punishment, access to abortion, the U.S. census and procedures for the upcoming election. All of those rulings have been part of the court’s shadow docket. Continue reading »

Judge Amy Coney Barrett moved one step closer to becoming Justice Amy Coney Barrett on Thursday. In a hearing that Democratic senators boycotted, the Senate Judiciary Committee voted unanimously to send Barrett’s nomination to fill the vacancy created by the death of Justice Ruth Bader Ginsburg to the floor. The full Senate, where Republicans hold a majority, is expected to vote on Monday on Barrett’s nomination.

The committee’s 10 Democratic members declined to attend Thursday morning’s hearing, with several of them instead placing in their chairs large photos of constituents who, they say, are concerned that Barrett will vote to strike down the Affordable Care Act. The justices are scheduled to hear oral argument on Nov. 10 in a challenge to the ACA’s requirement that virtually all Americans buy health insurance; if she is confirmed on Monday, Barrett could be on the bench in time to participate in that argument. Continue reading »

Thursday round-up

By on Oct 22, 2020 at 10:43 am

The Supreme Court on Wednesday night issued an emergency 5-3 ruling allowing officials in Alabama to reinstate a ban on curbside voting for the upcoming election. And on Thursday morning, the Senate Judiciary Committee advanced the Supreme Court nomination of Amy Coney Barrett to the full Senate, setting up a final vote on her nomination on Monday.

Here’s a round-up of other Supreme Court-related news and commentary from around the web: Continue reading »

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