Name: The Shadow Docket
Rating: 4.6 (10 reviews)
Author: Stephen Vladeck

What’s in it for me? Discover how the Supreme Court uses procedural rulings to expand its authority and reshape the law.

Each June, the eyes of the legal community turn to the Supreme Court. As the Court winds down before its summer recess, its decisions in the most high-profile and hotly debated cases are revealed. Journalists rush to get their hands on the opinions, and interested parties comb through the pages to learn how the law of the land has been reshaped.

But there’s another set of Supreme Court rulings that trickles out as well – decisions that garner far less attention but are every bit as influential. These rulings come from the so-called shadow docket. And Stephen Vladeck argues that they’re causing grave harm to the American legal system and to the legitimacy of the Supreme Court as an institution.

In this Blink, we’ll explore how shadow docket decisions differ from the merits docket handed in by the Court every June. We’ll highlight a few shadow docket cases that have had profound impacts on American law and society, and explain why the Supreme Court’s use and abuse of the shadow docket is so troubling.

The shadow docket is the agenda for the Court’s many procedural decisions

So, what is the shadow docket, exactly? There are a few types of decisions that fall under this category. One occurs when the Supreme Court agrees to take a case, hear arguments, and issue a formal ruling. This is what’s known as granting certiorari.

Issuing injunctions is another part of the shadow docket. This is when the Supreme Court orders a party, such as a plaintiff or a lower court, to start or stop what they’re doing. In practice, this can mean striking down a law while litigation is ongoing, or compelling lower courts to keep the law in place. While these choices may appear mundane and inconsequential on the surface, they can make a major difference in the law.

These shadow docket rulings constitute a whopping 99 percent of the Supreme Court’s decisions. But sheer volume isn’t the main issue. It’s that these rulings are delivered anonymously and without explanation. All the Court has to provide is a one-sentence declaration, and their dictums carry weight.

Another issue is the nature of these rulings. Since the Supreme Court first convened in 1790, there have, of course, been many procedural rulings. But the kinds of rulings made today are different.

Since the mid-2010s, Vladeck argues, the shadow docket has been used to change the law in major ways. From elections to immigration to capital punishment, shadow docket decisions have shifted several aspects of the law to the political right. And while it’s one thing for the Court to rule “on the merits” one way or the other, using these procedural decisions to transform American law is an abuse of the Court’s authority.

In the next section, we’ll look at practical examples of how Vladeck believes the shadow docket has been abused for partisan gain.

The Trump administration’s impact on the shadow docket

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.

How the shadow docket helps influence elections to favor Republicans

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.

How the shadow docket undermines the Supreme Court’s legitimacy

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.

Key ideas in The Shadow Docket

What is The Shadow Docket about?

The Shadow Docket (2022) explores the Supreme Court’s growing abuse of its shadow docket – the procedural rulings it issues, often anonymously and without explanation. Since the mid-2010s, the conservative wing of the Court has increasingly relied on this opaque tactic to empower Republican administrations, influence elections, and transform the law in ways that threaten their own legitimacy.

About the Author

Stephen Vladeck is the Chair of Federal Courts at the University of Texas School of Law. He has argued more than a dozen cases before the Supreme Court, and his work has appeared in legal journals such as the Harvard Law Review and the Yale Law Journal. He is currently a Supreme Court analyst for CNN.