Thursday, September 09, 2021

 

Shadow Dockets

 

By Marissel Descalzo

 

Thank you David for inviting me to serve as a guest blogger.  I’m very excited for this opportunity to contribute to the community you’ve created.

 

If you’ve been following the news over the past few days, you’ve probably heard about the Supreme Court’s cryptic “shadow docket.” The “shadow docket” is a phrase coined by William Baude, a professor at the University of Chicago Law School, to describe the use of emergency orders and summary decisions by the Supreme Court without full briefing and oral argument

 

Shadow docket cases typically arise from emergency requests to stop a lower court’s decision where the applicant has to show “irreparable harm” absent immediate intervention. The Supreme Court has historically used the shadow docket to decide unambiguous cases (e.g., federal death penalty cases). 

 

Recently, there has been a recent shift in the type and number of cases being decided on the shadow docket. In the past 18 months, the Supreme Court has issued shadow docket decisions on issues involving the COVID-19 pandemic, restrictions on places of worship, and changes to voting rules during the pandemic.  

 

In the last week of August alone, the court decided three highly politically charged issues – the Biden administration’s eviction moratorium, the Trump administration’s “Remain in Mexico” policy, and the new Texas abortion law – all on the shadow docket. Arguably, the most controversial decision related to the Texas abortion law.  The decision was widely reported and criticized, even David blogged about it  and was reported throughout mainstream media, including was the Texas abortion law  HERE.

 

Critics claim that the “right” is using the shadow docket to push an agenda.  Steve Vladeck, a law professor at the University of Texas School of Law, strongly supports this view.  He’s been tracking the shadow docket and reports that 41 requests for emergency relief were submitted by the Trump administration, while only eight were submitted by the Obama and Bush administrations combined.  More about Professor Vladeck’s opinions can be found HERE.

 

Whatever the motivation, the use of the shadow docket is certainly troubling and downright dangerous.  Significant issues that affect our legal system and vulnerable populations are being decided without the benefit of briefing, oral argument, and public input through amicus briefing.  Here’s to hoping that these matters shift back into the light and out of the shadows!

 

 


 

5 comments:

  1. Anonymous9:50 AM

    ***All*** of the orders on the "shadow docket" that you cite had briefing, all of it publicly available. The parties are claiming the need for emergency action, so the fact that the courts quickly decide emergency requests for TROs/injunctions and stays of the same is not troubling in the slightest. In fact, the refusal to consider emergency requests would necessarily deprive one party of the chance to avoid irreparable injury if no action is immediately taken.

    This is "downright dangerous"? Please. You dont seem to be upset of all the TROs / injunctions on trump...it seems your quarrel is simply that not all of the orders on the shadow docket come down as you prefer.



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  2. Anonymous11:22 AM

    Yep. Pro-choice litigants filing emergency requests is part of a right-wing conspiracy. Got it.

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  3. Anonymous12:16 PM

    There's also an 11th circuit shadow docket dealing with prisoner filings in second habeas cases.

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  4. Beowulf12:31 PM

    Granting or denying a temporary stay" doesn't decide anything on the merits.

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  5. Anonymous10:32 AM

    Now dipshit Breyer tells NPR that the decision not to block the Texas law was "very, very, very wrong" but also that the constitutionality of the law shouldn't be decided on an emergency basis. Make up your mind, clown.

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