The Shadow Docket summary

When the Supreme Court grants emergency relief, it’s supposed to be for emergencies – extenuating circumstances that would cause irreparable harm if relief weren’t granted. For most of the Supreme Court's history, administrations of both parties have asked for emergency relief sparingly. During the 16 years of the George W. Bush and Barack Obama presidencies, there were only eight such requests – four of which the Court granted, and four that were denied.

But this changed with the Trump administration. In just four years, the solicitor general, who represents the federal government in court, issued 41 requests for emergency relief. And of the 36 that received a formal response from the Supreme Court, 28 were approved. This emergency relief usually came in the form of blocking lower court rulings that disfavored the Trump administration. As a result, a number of policies that lower courts ruled unlawful were allowed to go into effect.

To understand how the shadow docket is used to help sway elections, it’s important to first consider two Supreme Court cases. The first is the 2006 case of Purcell v. Gonzalez, which regarded Prop 200 – an Arizona ballot initiative that established stricter voter ID requirements for in-person voting. The law was challenged in court on the grounds that it had a disparate impact on minority voters, thus violating both the Constitution and the Voting Rights Act.

Despite lower courts blocking Prop 200 from going into effect for the 2006 election, the Supreme Court ruled that it could. What’s more, the Court established what’s called the Purcell Principle. This new legal doctrine states that courts should generally not intervene in election disputes or change their rules in the lead-up to election day, because doing so might confuse voters or election administrators.

People’s faith in the authority of the Supreme Court is dwindling. And while some of this is due to a series of high-profile merits cases in recent terms, Vladeck thinks the shadow docket is making things even worse.

It isn’t simply the fact that these shadowy rulings are often unsigned, or that they’re coming in far greater frequency. It isn’t just that they come with no explanation – or that the rulings are often contradictory, with the only common thread being that they tend to favor a specific set of political priorities. It’s the combination of all of these factors that make the shadow docket so dangerous.