The U.S. Supreme Court’s Shadow Docket: “Un-reasoned, Inconsistent, and Impossible to Defend” or a Necessary Emergency Procedure?

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 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

COVER STORY By: Maria V. Gillen

Attorney, Tennessee Valley Authority Office of the General Counsel

bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decision-making—which every day becomes more un-reasoned, inconsistent, and impossible to defend.10 Justice Sotomayor too bemoaned the short cuts—“The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”11

Chief Justice Roberts echoed these concerns, stating that he would have granted the application to preliminarily enjoin the bill to “preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”12 In so doing, he acknowledged the defendants’ argument regarding the procedural difficulties in taking such action in this particular case, but felt “the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.”13 Roberts highlighted the lack of the usual deliberative processes as a precaution against denying the petition: We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument. . . . I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims.14 Similar controversial summary orders of recent years have reshaped the legal landscape on high-profile matters like immigration enforcement, election rules, and public-health orders barring religious gatherings and evictions during the pandemic. For example, last year in an emergency petition in a case over a controversial immigration order from the Trump Administration, Justice Neil Gorsuch bemoaned the lack of procedural safeguards such rushed “emergency” orders present, while supporting the end result achieved by the Court’s order (allowing the immigration rule to stand): Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.15

Not all court watchers, or Supreme Court Justices, see these orders as anything other than business as usual. Instead, they separate the process from the underlying content of such orders to say they are a necessary part of the Court’s busy docket. During a recent speech at Notre Dame, Justice Alito attempted to tone down the rhetoric by referring to Baude’s “shadow docket” as “the emergency docket.”16 Alito compared such orders to the type of actions taken by emergency medical personnel at the scene of an accident. He said that the Court had often issued orders in such cases without substantial briefing or oral arguments because immediate action was needed. He noted that “[y]ou can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way.”17

Whatever one’s politics, legal practitioners should find common ground in ensuring that the careful, deliberative process of the Supreme Court’s appellate docket is preserved. The process is designed to ensure that issues and the legal arguments supporting or critiquing them are sufficiently honed such that this court of last resort has all the law and facts necessary to make a reasoned, legally sound ruling. The results of such controversial rulings will continue to be debated, but their legal underpinnings will be on firmer ground and not easily dismissed as “political” rulings from an increasingly partisan Court.

1 Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021). 2 S.B. 8, 87th Legislature (Tx. 2021) (enacted). 3 William Baude, FOREWORD: THE SUPREME COURT’S SHADOW DOCKET, 9 N.Y.U. J. L. & Liberty 1 (2015). 4 Miscellaneous Order List (9/30/2021), available at https://www.supremecourt.gov/ orders/courtorders/ 093021zr_c07d.pdf 5 Order in a Pending Case, Rick A. Rhoades v. Martinez, 21A43, available at https:// www.supremecourt.gov/ orders/courtorders/093021zr_c07d.pdf 6 Baude, 9 N.Y.U. J. L. & Liberty at *9. 7 Id. at 9-10. 8 Marbury v. Madison, 5 U.S. 137 (1803). 9 Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket: Hearing Before the Senate Committee on the Judiciary, 9/29/2021 (testimony of Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law). 10 Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021) (Kagan, J., dissenting). 11 Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021) (Sotomayor, J., dissenting). 12 Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021) (Roberts, C.J., dissenting). 13 Id. 14 Id. 15 Dep’t of Homeland Security v. New York, 140 S.Ct. 599, 600 (Mem) (2020) (Gorsuch, J., concurring). 16 Adam Liptak, Alito Responds to Critics of the Supreme Court’s ‘Shadow Docket,’ N.Y. Times, October 1, 2021, at A17. 17 Id.