Unsigned, unexplained orders have reshaped American law.
Most Americans were introduced to the Supreme Court’s “shadow docket” in 2021, when the majority declined to block a Texas law that banned abortion in the state after six weeks. Despite the protestations of the conservative justicesat the time, the decision foreshadowed the 6–3 decision to overturn Roe v. Wade, the 1973 case guaranteeing the right to an abortion.
Steve Vladeck, a law professor at the University of Texas at Austin and the author of the forthcoming The Shadow Docket, was one of the few legal observers who had been sounding the alarm on the Supreme Court’s use of emergency orders to make sweeping changes to American law outside of public scrutiny and regular procedure. Although emergency orders in time-sensitive cases had long been a part of the high court’s work, in recent years the volume, breadth, and partisan valence of the justices’ rulings in such matters had changed.
The conservative justices’ use of the shadow docket to make rapid, expansive rulings on important matters has since drawn public scrutiny and even criticism from both the Court’s Democratic appointees and Chief Justice John Roberts. Most recently, the Supreme Court stayed a ruling from a conservative judge outlawing the abortion drug mifepristone, an apparent retreat from the Court’s recent aggressive use of the shadow docket.
In his book, Vladeck notes that Justice Samuel Alito has “accused the shadow docket's critics of trying to intimidate the Court and undermine its legitimacy in the eyes of the public.” Vladeck explains, however, that he wrote the book not to delegitimize the Court, “but because I fear that the Court is delegitimizing itself, and that not enough people—the justices included—are noticing."
I spoke to Vladeck about his upcoming book, how the shadow docket has shaped American law, and whether public backlash to the Court’s conduct has had an effect on the justices.
This conversation has been edited for length and clarity.
Adam Serwer: What is the shadow docket? And why should people care?
Steve Vladeck: The term shadow docket is this evocative shorthand that Chicago law professor Will Baude coined in 2015, not as a pejorative, but just as an umbrella term to capture everything the Supreme Court does other than thoroughly explained, merits decisions [on the regular docket]. Will’s insight, which I’ve somewhat shamelessly appropriated, is that a lot of important stuff happens in the more technical side of the Court’s docket—important stuff that affects all of us, that shapes the law and lower courts, and that we sort of ignored at our peril. And what’s remarkable about that is that Will wrote that in 2015. And if anything, the last eight years have actually dramatically underscored just how right he was.
Serwer: How did the shadow docket change during the Trump administration?
Vladeck: It’s common for those who like to defend the Court to say, “There’s always been a shadow docket.” That’s true. The really big shift during the Trump administration is in how the Court used one slice of the shadow docket, what we might call the emergency docket. These are contexts in which a party is asking the Court to step in while a case is working its way through the courts, and either freeze a lower-court ruling or block government action that lower courts refuse to block.
And during the Trump administration, we see the Court intervening far more often, in non-death-penalty cases, where the emergency interventions are having statewide and nationwide effects. And so instead of the Court allowing an execution to proceed or freezing one, you have the Court allowing a Trump immigration policy to be carried out perhaps for three years, or freezing a state COVID restriction. That’s a huge qualitative shift. We also saw the Court doing this a lot more often. So there’s also a quantitative uptick. And all the while, the Court is hewing to its norm of not usually explaining any of these procedural orders. And so the Court is providing no rationale, no vote count, nor even telling us who wrote whatever the Court has said on the subject.
Serwer: How did COVID affect the shadow docket?
Vladeck: First we had the flurry of religious-liberty challenges to stay COVID-mitigation policies. And we saw these especially in blue states, where the claims were that COVID restrictions, insofar as they operated on houses of worship or other religious gatherings, violated the free-exercise clause.
Here we saw the Court’s most aggressive use of the shadow docket, repeatedly intervening—and especially after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg—to block these policies in New York, to block them in California, to block them in Colorado, to block them in New Jersey. The COVID cases pushed the Court to expand the scope of religious-liberty protection in the Constitution entirely through these emergency orders, orders that were usually unexplained and never had the same process as merits cases. And that’s especially telling because all this is happening as the Court has on its merits docket cases that would have given the justices similar opportunities to expand the free-exercise clause.
That’s the first way. Then you have all of these election cases, where you have either states that try to make it easier to vote remotely because of COVID or states that don’t and then get sued. So you have an unusual concentration of election-related disputes, where the Court is put in the position of trying to decide what rules should attach to voting as we get closer and closer to the election. And we see, in both of those contexts … we see the Court using these emergency orders to shape policy, oftentimes without making any law. And, you know, I think, perhaps most perniciously in ways that tended to at least appear to favor Republicans over Democrats.
Serwer: Some people would say that the Supreme Court did exactly what should have been done in these religious-liberty shadow-docket cases: They were protecting people’s right to worship. How do you see those cases, and how do you see them having changed the legal landscape as far as religious liberty is concerned?
Vladeck: Reasonable folks are going to disagree about what the free-exercise clause ought to protect. The question is, if the Court is going to change the meaning of the free-exercise clause, should it be doing so through a series of emergency orders, where there hasn’t really been a full opportunity for briefing, where there was no oral argument, where there was really very little opportunity for friends of the Court to weigh in? Should [the Court] be doing this in a context in which they’re only supposed to grant relief, if the rights are already “indisputably clear”—that’s the standard for an injunction pending appeal? Or should they be doing it the normal way on the merits docket?
And so what’s remarkable about the COVID cases is that here’s a context where, instead of just using emergency applications and emergency orders to adjust the status quo, the Court willfully changed the underlying constitutional principles, perhaps added them in ways that we would think are defensible, if not even normally desirable—but in a way that really is not supposed to be what these kinds of procedural orders are for.
Serwer: Did you think that the Texas case regarding Senate Bill 8 and abortion was the first time the shadow docket really started drawing public notice outside of Court watchers and reporters?
Vladeck: Oh, absolutely. And there’s actually some media scholarship that backs this up. There was a study in the Chicago Policy Review that tracked references to the shadow docket in mainstream media outlets, and they skyrocketed after the September 2020 nonintervention in the Texas case. I think it was really the S.B. 8 case that put this on the map.
That attention also produced some fascinating reactions. In response to that public blowback, we saw the first conservative attempts to defend what the Court had been doing, with Alito’s speech at Notre Dame and editorials in The Wall Street Journal. But we also see some of the justices shifting their behavior. There’s this remarkably cryptic, but I think important, concurring opinion that Justice Barrett, joined by Justice Brett Kavanaugh, writes in the main health-care-worker vaccine case, at the end of October 2021. Justice Barrett basically says, Hey, just because you make out your case for emergency relief, doesn’t mean we have to grant it.
In retrospect, I think she was signaling that perhaps she and Justice Kavanaugh were lowering the temperature, and are going to be a little more cautious in when they would vote for emergency relief going forward. That’s borne out by what’s happened in the last 18 months, by how much less often the Court has granted emergency relief, by how much more often we’re seeing some combination of Alito, Clarence Thomas, and Neil Gorsuch dissent from rulings regarding emergency applications.
Serwer: How are the lower courts reacting to the way the Supreme Court has been using the shadow docket?
Vladeck: I think the lower courts are in a bit of a sticky wicket, because in some of these cases, especially in the COVID religious-liberty cases, the Supreme Court has been instructing lower courts that its unsigned, unexplained orders are precedential—and that lower courts are erring, as the Court says in one case of the Ninth Circuit, by not following rulings where there was no majority rationale. So I think the lower courts are largely doing their best, but it’s really hard to know what to do if you are a principled, faithful, lower-federal-court judge, when the Supreme Court historically has said, If we don’t provide a rationale, we’re not giving you precedent to follow, and then the Court acts differently in this context.
I think we’re seeing a bit of a smorgasbord where some lower courts are just following what the Supreme Court has said, and some are just throwing up their hands and saying, Without more guidance from the Supreme Court, I’m just sort of stuck here. That’s perhaps the biggest point on which there ought to be consensus: Leaving aside who wins and who loses, the less the Supreme Court explains itself in this context, the harder it is for the relevant actors, for the lower courts, for the relevant government officials, to understand what their responsibilities are. That should presumably be something we all have common cause in ameliorating.
Serwer: How would you describe the Court’s use of the shadow docket in voting-rights cases?
Vladeck: What we saw in 2022 was a pair of decisions in the Alabama and Louisiana cases where—after pretty exhaustive efforts to take evidence and get to the bottom of the factual disputes—lower courts had said, Hey, states, you’ve got to redraw your maps because the current ones violate the Voting Rights Act. And the Supreme Court, despite these lengthy lower-court rulings, just says, Hey, states, no, you don’t.
That’s especially significant in this particular moment, because between Alabama and Louisiana directly, that’s at least two House seats. There’s also a federal judge in Georgia who said he would have blocked Georgia’s maps but for the unexplained stay in the Alabama case. So that’s three House seats. You know, there’s a New York Times report that suggests that somewhere between seven and 10 House seats might have been directly affected by the Court’s voting-rights cases on the shadow docket in early 2022. That’s control of the House. If all of those districts had been majority-minority districts, I don’t think it’s that remarkable a suggestion that many of them would have been safe seats for Democrats. Instead, they were all safe seats for Republicans. And so right there, you have an argument that unsigned, unexplained orders from the Supreme Court helped Republicans to take control of the House of Representatives.
Serwer: Last week, the Court took up a ruling where a lower-court judge banned the abortion pill, which is the most common way that women today get abortions. What do you make of the Court’s decision there?
Vladeck: There’s so much to say about the mifepristone case. One thing is, in some respects, this is actually more like an old-school emergency application, where you have this remarkable outlier ruling by a lower court. It’s highly possible that the justices just looked at the equities and said, Whatever the right answer is to this case on appeal, we’re not going to disrupt such an important medication while that appeal works its way through the courts, that we’re going to sort of preserve the status quo, first and foremost, and worry about the legal issues later. So in that respect, I think it was actually probably a page out of the older playbook.
I also think that it’s emblematic of why the shadow docket has become such an important part of any public discussion of the Supreme Court. Because the mifepristone case gets from an injunction, or at least a stay by a district judge, to a pretty important rule by the Supreme Court in two weeks. Ten years ago, that would have been unheard of, and it’s become, to a large degree, de rigeur—you know, the student-loan cases get to the Supreme Court remarkably quickly after they’re filed. Part of why the shadow docket has become so important is because we’re seeing more and more of these lower-court rulings that put pressure on the justices far earlier in cases than they’re used to, with far higher stakes at that stage in litigation than they’re used to.
If the Court is frustrated with how many of these cases are getting to it in this crazy expedited, record-free posture, the justices have a way of expressing that and saying, This is no way to run a railroad. And instead, what we’re seeing is just one emergency after another, for a Court that as recently as five, six, seven years ago, would maybe have gotten one of these cases a year.
Serwer: Do you think public criticism and internal dissent at the Court over the shadow docket has made a difference?
Vladeck: I do. I mean, I’ll never prove it. But I think it’s really hard to look at the overall data set and compare, for example, the October 2020 term to the last two terms and not see pretty significant shifts in at least how some of the justices are behaving. Not surprisingly, the shifts are principally centered on the three justices in the middle. So Chief Justice Roberts and Justices Barrett and Kavanaugh.
But it’s hard to believe that that’s a coincidence. And it’s hard to believe that the subtle but significant shifts in when the Court has granted emergency relief and how it’s behaving in these cases are unrelated to some of the public criticism, to some of the pushback.
I think that’s an important point unto itself. There’s such a fatalism these days about the idea that the Court is in any way subject to public criticism, responsive to public criticism. To me, the shadow docket might be an object lesson and how maybe it actually is [responsive to public criticism], especially when we’re talking about procedural critiques, as opposed to substantive ones.
https://www.theatlantic.com/ideas/archive/2023/05/steve-vladeck-shadow-docket-emergency-orders-supreme-court/673924/
