THE U.S.SUPREME COURT’S SHADOW DOCKET “UN-REASONED, INCONSISTENT, AND IMPOSSIBLE TO DEFEND” OR A NECESSARY EMERGENCY PROCEDURE? It is rare for an order from the United States Supreme Court to make national news. But the Court’s one-paragraph order in Whole Woman’s Health v. Austin Reeve Jackson1 did just that. The order summarily denied an application to enjoin Texas’s abortion bill, Senate Bill 8.2 The unusual bill permits private citizens to sue anyone who provides or “aids or abets” an abortion in violation of the Act, regardless of whether they know the abortion is prohibited under the Act or even intends to engage in violative conduct. The bill provides for injunctions against such parties and allows courts to award private-citizen plaintiffs at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. The Act prohibits most abortions after six weeks of pregnancy (when most women do not even know they are pregnant) and makes no exceptions for incest or rape. Critics argue that Texas crafted the law to deliberately evade judicial review by making citizens, not the state, responsible for enforcement. This unique state legislation was helped along by the Supreme Court’s summary order procedure, which has come to be known as the “shadow docket.” The Shadow Docket The term “shadow docket” was coined by Professor William Baude in 2015 to describe the Court’s summary orders that issue without public briefing, argument, or written authored opinions.3 Traditionally, such orders are used to deny petitions for certiorari that do not meet the necessary high bar, to deny emergency petitions for relief that are not truly emergencies, or for housekeeping orders.4 They have also been used in death penalty cases, resolving requests for last-minute stays of execution that could not wait for the slow wheels of justice to turn for resolution.5 In his 2015 article, Baude expressed concern over this part of the Court’s operations, opining that these orders undermined transparency
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and, in turn, tarnished the Court’s credibility. Baude assured his audience was that he was not making a normative judgment, only that the orders “raise questions of procedural regularity.”6 Baude noted that “procedural regularity begets substantive legitimacy,” with the Court’s procedural regularity is at its zenith with merits cases. These cases are announced in advance, have briefing and argument that can be accessed by the public, are determined under voting rules that are well known, and have results that are explained in reasoned written opinions that identify which justices agreed with what result and under what reasoning.7 Orders, he argued, have none of these things. As the Court is increasingly viewed as a partisan body rather than an impartial one whose “province and duty [is] to say what the law is,”8 this uptick in orders which have wideranging, real-world impacts out of public view has raised concern. Applications for summary relief have increased dramatically. Whereas the Department of Justice filed eight applications for emergency relief between 2001 and 2017, the Trump DOJ filed 41 emergency motions in its four years.9 And, as the numbers have grown, the nature of the relief moved closer to merits decisions on controversial social issues. Extra-judicial Action or Necessary Triage? Justice Kagan highlighted the troubling nature of the Court’s increased utilization of its “shadow docket in her particularly pointed dissent in Whole Women’s Health: Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. . . the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely
DICTA
November 2021
