The Shadow Docket

February 13, 2023
University of Texas law professor Vladeck debuts with an expert study of how the Supreme Court’s conservative majority has increasingly used “obscure procedural orders to shift American jurisprudence definitively to the right.” Unlike the “merits docket,” where justices issue lengthy, signed opinions months after hearing oral arguments, rulings handed down on the “shadow docket” are unsigned, unexplained, and often released in the middle of the night. Though the majority ruling in Dobbs v. Jackson Women’s Health Organization officially overturned Roe v. Wade, Vladeck points out that an unsigned order issued nearly 10 months prior effectively did the same thing—when the court refused to block a Texas law banning abortions after six weeks. Since 2017, shadow docket rulings have also kept restrictive voting laws in place, blocked Covid-19 vaccine mandates, and perhaps even altered control of the current Congress, by staying a series of lower-court decisions in redistricting cases, even though those decisions were consistent with existing precedent. Vladeck analyzes the most consequential of these shadow docket orders, revealing how they “run roughshod over long-settled understandings of both the formal and practical limits of the Court’s authority,” and calls for congressional action to limit such rulings. This insightful and accessible account raises an important alarm.

July 1, 2023
A legal scholar examines and cross-examines a Supreme Court increasingly given to secrecy. Vladeck, CNN's Supreme Court analyst and a professor at the University of Texas School of Law, argues that the court has increasingly delivered its rulings by means of the "shadow docket" of his title, unsigned orders with no position or legal analysis attached and comprised of shorthand language--e.g., "the application for injunctive relief presented to JUSTICE SOTOMAYOR and by her referred to the Court is granted," or "the application for a stay presented to JUSTICE ALITO and by him referred to the Court is denied." Sometimes this means that the court lets lower rulings stand, but sometimes the unsigned order is a way of sidestepping the fraught matter of actually rendering a concrete decision. Occasionally, it's a way of enforcing unpopular legal rulings without attaching responsibility, with plenty of attendant ironies. For example, Justice Amy Coney Barrett, appointed by former President Donald Trump, has demanded that critics read the arguments that would ordinarily be included on a "merits docket" only to issue most decisions in those bland one-sentence utterances. Even the website offering transcripts of the justices' public speeches hasn't been updated in years (the most recent entry is from August 2019). By Vladeck's account, not only is the court withdrawing itself from public accountability, but it is also making decisions that properly belong to the executive and legislative branches. The author often writes in language requiring legal training to fully understand--"In general, although denials of certiorari therefore cannot be cited as proof of the Supreme Court's views on any particular issue, they regularly produce significant substantive effects by changing the status quo on the ground"--but his arguments against the walled-off court are certainly persuasive and timely. Critics of the current court will find much to ponder in Vladeck's account.

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