The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic
by Stephen Vladeck
2023 — Basic Books — 352 pages
“The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic” by Stephen Vladeck delves into the hidden world of the Supreme Court’s shadow docket, where unsigned and unexplained decisions wield significant influence. This term, coined by William Baude in 2015, refers to orders not subject to the rigorous standards of procedural regularity applied to merits cases.
According to Vladeck, approximately 99 percent of the court’s decisions occur on the shadow docket, characterized by orders that are “unseen, unsigned, and almost always unexplained.”
Vladeck traces the shadow docket’s evolution, attributing its prominence to the exigencies of capital punishment cases, where the finality of execution necessitated swift and final resolutions to appeals. However, since 2017, the justices have increasingly utilized these orders, sometimes sidestepping similar issues on the merits docket where explanations for their decisions are required. This surge in shadow docket usage has led to a rise in public dissent, especially as these unexplained rulings are now treated as precedents, binding lower courts and government officials.
The book highlights the potential alignment of shadow docket decisions with Republican political preferences, contributing to accusations of partisan bias. Vladeck emphasizes that the shadow docket is not a new phenomenon but argues that its recent surge is eroding the court’s legitimacy. The ease with which justices can join unexplained orders, avoiding the need to endorse lengthy reasoned opinions, further fuels concerns of political partisanship.
The narrative unfolds with the Trump administration’s travel ban in 2017, a turning point that marked a substantial increase in the court’s engagement with the shadow docket. The justices, often without providing explanations, frequently granted emergency relief sought by the Trump administration. Vladeck underscores the lack of consistency in the court’s approach, particularly in cases related to immigration, religious liberty, and COVID restrictions.
The book highlights the expansion of religious liberty through the shadow docket, especially after Justice Amy Coney Barrett’s appointment. The Court, in an abrupt shift, began using the shadow docket to reshape the understanding of the First Amendment, reducing government regulations that burden religious practice.
Additionally, Vladeck explores the court’s involvement in election-related cases, using the shadow docket to intervene selectively and inconsistently. The Court’s use of the Purcell principle, ostensibly to maintain election rules close to election time, comes under scrutiny for its inconsistency and potential partisanship.
The narrative extends to redistricting cases, where the Court’s shadow docket rulings demonstrate a willingness to make new law, further eroding its legitimacy. The book concludes with a call for reform, either from within the court or through congressional intervention. Vladeck suggests that reform is unlikely to originate within the Court, emphasizing the need for external pressure, possibly from Congress.
Despite the shadow docket being a long-standing feature of the Supreme Court, Vladeck argues that its recent expansion poses a threat to the court’s legitimacy and calls for a reevaluation of its usage. The book leaves readers contemplating the impact of the shadow docket on the court’s role in shaping legal precedents and maintaining its reputation as a neutral and deliberative institution.
Here are the 5 key points from the book:
1. Rise of the Shadow Docket: The book underscores the significant increase in the Supreme Court’s reliance on the shadow docket, where unsigned and unexplained decisions are made without the level of scrutiny applied to cases on the merits docket. Approximately 99 percent of the court’s decisions now take place on the shadow docket, marking a substantial shift in the court’s jurisprudential approach.
2. Political Partisanship: The author argues that the surge in shadow docket usage aligns with Republican political preferences, particularly evident during the Trump administration. Many decisions made on the shadow docket, whether related to the travel ban or other issues, appear to favor Republican policies. This perceived partisanship raises concerns about the court’s impartiality and adherence to neutral legal principles.
3. Erosion of Religious Liberty: The book explores how the shadow docket has been used to expand religious liberty, especially after the appointment of Justice Amy Coney Barrett. The Court, through unexplained rulings, has reshaped the understanding of the First Amendment, leading to a scenario where fewer government regulations are allowed to burden religious practices, even unintentionally. This shift is seen as a departure from the court’s previous reluctance to make new law through shadow docket decisions
4. Inconsistent Application of Purcell Principle: The book critically examines the court’s use of the Purcell principle, which argues against changing election rules close to an election to avoid confusion. The author highlights instances where the court inconsistently applied this principle, intervening selectively and seemingly in a politically motivated manner in election-related cases. The book questions the court’s adherence to its own principles and the potential partisanship in its decisions.
5. Undermining Court Legitimacy: The overarching theme of the book is the impact of the shadow docket on the legitimacy of the Supreme Court. The author contends that the court’s increased reliance on unexplained and unsigned orders, often with political implications, is eroding its standing as an impartial and deliberative institution. The book concludes with a call for reform, either from within the court or through external pressure, emphasizing the need to address the potential damage to the court’s independence and reputation.