The Supreme Court’s “Shadow Docket”
What is it?
Why is it important?
When emergency appeals are made to the Supreme Court, they may be placed on the Court’s shadow docket rather than the Court’s merit docket.1 Historically, appeals seeking fast rulings (those delivered by the Court within days or weeks of the request) on procedural motions, scheduling, injunctions, stays of lower court decisions, or rulings to prevent some impending harm to a party, are placed on the shadow docket. The Court does not hold oral arguments for cases on the shadow docket; instead, it bases its decision on the litigants’ briefs. The justices’ deliberations are held in secret and are much shorter than when a case comes from the merit docket. A majority decision is written with extremely limited time for circulation among the justices before it is publicly issued. Minority opinions may also be written and announced. The Court’s majority opinion is often unsigned, that is, the names of the justices voting for the majority are not provided. They are short in length, offering very limited, if any, explanation or legal reasoning defending the decision. It is also possible for the Court to not provide the vote total for and against the majority opinion.
Once, the shadow docket was only used for routine matters, and rarely to consider major cases: cases placed on the shadow docket were handled by a single justice, who read the briefs and issued a ruling. In the 1980s, however, the Court slowly began accepting more cases for the shadow docket, including those dealing with significant matters of public policy requiring constitutional interpretation. By 2010, the shadow docket’s number increased further, so that by 2025, the Court is essentially in session all year, rather than just between the first Monday of October and — approximately — the end of June, as it considers appeals for the shadow docket and works to issue rulings.
Constitutional scholars are gravely concerned with the Court’s expanded use of the shadow docket, especially for cases dealing with major constitutional questions. They contend that the expedited process lacks transparency (no oral arguments), sufficient deliberation (very truncated discussion period) and detailed reasoning, including precedent cases, for the majority’s decision. Without adequate explanation, lower courts are left to fend for themselves as they attempt to apply these rulings to specific cases that come before them. Moreover, what appears to be hasty justice can be viewed as capricious or subjective justice, which may undermine the Court’s legitimacy in the eyes of the public.
- A docket is a “formal record in which a judge or court clerk briefly notes all the proceedings and filings in a court case” (Black’s Law Dictionary, 12th ed.). One can also consider a docket in this context as a category of cases to be considered and how the case will be handled. When a case is accepted by the Supreme Court under normal circumstances, it is placed on the merit docket, and lawyers for all the parties involved are given ample time to submit lengthy written briefs in advance of oral arguments before the full Court. Following oral arguments, the justices deliberate in secret and render an initial, secret decision. A justice is assigned to write the majority opinion, and the dissenters, if any, begin drafting their opinions. All opinions, majority and minority, circulate among all the justices until all the justices in the majority are satisfied not only with the opinion which they agreed to sign, but also with the case’s outcome. It is not uncommon for justices who voted with the majority to change their minds upon reading an opinion, and in a few cases, the case’s outcome is reversed. Only after all the justices have signed either one opinion or the other is the decision publicly announced. ⇧
Additional Information
For more information, see
Vladeck, Stephen,
The Shadow Docket: How the Supreme Court Uses
Stealth Rulings to Amass Power and Undermine the Republic.
New York: Basic Books, 2023.