By William Sweeney
‘But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes.’ Over two centuries later, James Madison’s warning feels eerily present. Throughout the United States’ history, monumental rulings from Marbury v. Madison (1803) to Brown v. Board of Education (1954) have been decided with hundreds of pages of opinions, written by Justices on the Supreme Court, painstakingly outlining their rationale in decisions that have altered the course of history.
However, since 2017, there has been a marked shift: the Supreme Court has been handing down more and more cases of national importance from what William Baude coined ‘the shadow docket’. The shadow docket contained 44 matters in the 2023–24 term. By the end of the 2024–25 term, as of June 27, that number had increased to 113. In 2022, the Supreme Court struck down 50 years of precedent when it overturned Roe v. Wade (1973), ending fifty years of precedent on the grounds that no historically grounded constitutional right to privacy existed in relation to abortion.
While unsurprising, given the Court’s recent drift towards originalism (the legal theory of constitutional interpretation that argues the Constitution should be interpreted based on its original meaning when it was adopted), many legal experts saw the justices refusal to block a Texas law that prohibited abortion after six-weeks a few months prior, as the true end to Roe. How were the justices able to effectively overturn Roe, without actually putting themselves on the record? Well, the answer is the shadow docket.
In order to understand the shadow docket, one must first understand how the Supreme Court decides what cases to hear, and why. In a year, over 7,000 cases are sent to the Supreme Court, and only 100-150 are chosen. This is what is called the ‘merits docket’. This docket is typically what we imagine when we think of the Supreme Court. Oral arguments are heard, petitioners and respondents then file briefs on the case, and opinions are published and released to the public. Media outlets cover oral arguments, and opinions are scrutinized by legal experts from across the ideological spectrum. However, while only a few special cases are ever able to reach the merits docket, many thousands of unsigned opinions and court orders are handed down through the shadow docket.
To be clear: the term ‘shadow docket’ is not a legal term; it is a generalization used to describe the granting of relief to a petitioner through an emergency order or expedited ruling, thereby bypassing the full briefing and oral argument process. Throughout history, and even today, the shadow docket has been used by the Supreme Court to resolve procedural and administrative matters promptly. To be considered, the applicant must show ‘irreparable harm’ that will be done if the court does not consider the case. ‘The emergency orders docket provides a way, when necessary, for the Court to preserve the status quo,’ argues Tejinder Singh. The shadow docket, in theory, has become a valuable and necessary tool for preserving the judiciary’s inner workings, especially in emergencies.
However, in recent years, the line between emergency relief and substantive constitutional rulings has become blurred. Though temporary in theory, these shadow docket rulings are often permanent in practice. Take, for example, during the COVID-19 pandemic, when the Supreme Court, through a string of decisions, blocked states from imposing pandemic-related restrictions in places of worship. In those instances, Singh contends, the Court effectively established new legal standards that granted greater favor to religious institutions than any prior decision issued through its merits docket, without a signed opinion and oral argumentation.
Election-related laws are also affected by shadow docket decisions, under which the Supreme Court can order a stay of a lower court ruling if new voter registration laws or redistricting maps are challenged. This thereby allows the new election laws to be in effect during an election that can determine control of the House of Representatives. A clear-cut example of this is Merrill v. Milligan (2022), when the Court allowed Alabama to use a congressional map that a lower court had already ruled likely violated the Voting Rights Act. The decision, issued through the shadow docket, temporarily stayed the lower court’s order; however, that “temporary” decision ultimately set the rules for the 2022 midterms by effectively allowing the overruled map to be used during the election, even though it turned out to be unconstitutional once the Supreme Court considered the merits of the case.
University of Texas law professor Stephen Vladeck argues that these emergency rulings are supposed to allow cases to move through the appeals process for consideration at a later date, but “the dirty secret is that later never comes.” Elections cannot be rerun, and policies implemented by a sitting administration remain in force until a subsequent administration repeals or alters them, allowing measures that may later be judged unconstitutional to remain in effect.
The consequences of these shadow docket decisions reach far beyond procedural mechanics. They sow confusion into our judicial system and reshape democratic norms that are vital for our republic. Understanding these consequences is crucial because while these decisions may be made in the ‘shadows’, their effects are anything but invisible.
First and foremost, shadow docket cases have an immediate impact on how lower courts rule. Naturally, the Supreme Court, as the highest court in the land, is the final arbiter of all constitutional issues. When shadow docket rulings are issued without any explanation, they leave lower courts with little clarity on how to proceed in similar cases. In June, Supreme Court Justice Sotomayor wrote in her dissent to a shadow docket ruling, ‘The Court’s continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing properly to divine their import, is indefensible.’ As the Supreme Court becomes increasingly involved in the appeals process, this tension will most likely escalate.
Secondly, and perhaps more urgently, the rise of shadow dockets in recent years imperils the fundamental republican tradition on which the United States was built. Decisions meant to be temporary or restricted to administrative questions are now reshaping civil rights, election rights, and the rule of law, upsetting checks and balances painstakingly established to protect against the vices of power. ‘Ambition must be made to counteract ambition,’ as James Madison wrote. However, when ambition comes from the shadows without any explanation, the Supreme Court finds itself in a position of legislation rather than adjudication, an interesting position given the inherent contradiction with originalist viewpoints that the Roberts Court seems to hold dear.
Through the court’s newfound affinity for the shadow docket, transparency and accountability, pillars of constitutional legitimacy, are relegated. Samuel Alito, one of the six conservative justices on the Supreme Court, defended the shadow docket by implying that justices ought to limit what they put on paper, ‘When we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences, so we have to be careful about every single thing that we say.’ While Alito may be correct in stating problems with lengthy opinions, his argument does not erase the fundamental fact that democracy requires accountability. Stephen Vladeck points out that there are many decisions scholars may disagree with. However, we must have a sense of rationality and trust that Supreme Court decisions are not predicated simply on nothing. In short, the shadow docket has none of that trust.
The erosion of trust and transparency within the highest court of the land may lend itself to the erosion of constitutional precedents that have guided the United States’ democratic principles for centuries. While Congress has held hearings on the shadow docket in recent years, it finds itself with more pressing matters confounding the country, leaving change, at least through congressional authority, a distant possibility. While in the meantime, a government for the people, by the people, and of the people may soon suffer the consequences of tyranny from the shadows.
The views expressed in this article are the author’s own and may not reflect the opinions of The St Andrews Economist.
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