Description

Most cases that reach the Supreme Court live and die on the “shadow docket.” That is the name given to the docket where everything other than full merits decisions happens. Most prominently, that is where the Supreme Court decides whether to grant stays of orders pending appeal, such as abortion-rights cases, voter redistricting cases, immigration orders, and nationwide injunctions that affect and set national policy.

Steve Vladeck’s New York Times bestselling new book is The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Steve has spent 10 years studying the shadow docket and reports that its use has increased markedly, and that we should be concerned.

The big concern: These rulings are made without full briefing, argument, or reasoned opinions. That undermines confidence in these rulings.

We discuss:

• Appellate courts do need a way to handle these emergency requests.
• Historically, the Supreme Court justice on Circuit Assignment handled them, through a recognized procedure.
• Since the 1980s, however, the full Court usually handles them, but in a more abbreviated or summary procedure.
• The first use of the shadow docket: in 1973 by Justice William O. Douglas, from the Post Office in Yakima Washinton, enjoining President Nixon’s bombing of Cambodia
• But Justice Douglas also said rocks and trees should have standing—and liberal standing doctrines do tend to put more pressure on the shadow docket.
• 6th Circuit Chief Judge Sutton’s criticism of nationwide injunctions, and how they put pressure on shadow dockets
• But, Steve says, the Court’s docket load over the years has not increased markedly, so that does not explain the shadow docket mischief.
• The Chief Justice in recent years in his annual State of the Court has stopped asking Congress for things, suggesting the Court’s increased sense of autonomy from the other branches
• What are the solutions? Congress should exercise its checks on the Court, such as by imposing mandatory automatic appeals in certain cases such as methods in capital punishment cases. This would ensure ordinary procedure in more cases and remove the temptation to use the shadow docket.

Stephen Vladeck’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• The Shadow Docket, on Amazon.
• Nationwide injunctions, discussed in episode 31. Chief Judge Sutton’s remarks here.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.