On paper, not a whole lot has changed about the role of the Supreme Court in our government. But in utilizing its powers in very different ways, the Supreme Court has challenged Americans to think about this long-standing institution’s role in our daily lives. With decisions coming at a faster rate through a little known procedural system — often without the deliberation that most Supreme Court cases demand — we have to wonder; are these decisions being made in the “fair and just” way as prescribed by the Constitution?
The “shadow docket,” a term coined by University of Chicago law professor William Baude in 2015, refers to the Supreme Court’s emergency docket by which it hears routine and emergency proceedings. This process allows the Supreme Court to issue their decisions without “showing their work,” so it is alarming that more substantive issues are being decided through this docket.
The history of the shadow docket
Although these emergency petitions have always been present in the Supreme Court, only in recent years have we seen this measure used for purposes other than what it was intended for. With a few exceptions, the decisions made on the emergency docket have been relatively uncontroversial. Baude created a term with such a negative connotation because he, along with several other legal scholars, believes this provision is being abused for nefarious purposes.
Ideally, the shadow docket should only be used for routine proceedings, such as giving more time to file briefs or urgent matters that must be handled quickly, like stay of execution on death row cases. “These emergency proceedings should not be used for cases of significant public interest,” says Omar Ochoa, lawyer and owner of Omar Ochoa Law Firm. “Evaluating a case on the shadow docket often means there is little context to the decision, leaving the American people guessing why the ruling was made.”
When a Supreme Court hears a case based on its merits, there is an extensive hearing process that involves both sides submitting briefings and arguments. These cases, typically announced at the beginning of the Term, are often ones that receive the most significant media attention and discussion, as this process gives legal scholars and public figures the time and opportunity to weigh in and evaluate any applicable laws on each case.
More recently, and with increasing frequency, the Supreme Court has used the shadow docket to make decisions on cases of significant public importance, and in the process, has avoided this intense public scrutiny. However, this public discussion is paramount in matters that are of considerable importance to the general populace.
Recent uses of the shadow docket
Last month, the Louisiana v. American Rivers case was decided on the shadow docket, prompting an outcry from both legal scholars and some of the Justices of the Supreme Court themselves. A dissenting opinion led by Justice Kagan and joined by Chief Justice Roberts and Justices Breyer and Sotomayor criticized the use of the shadow docket to hear cases without full briefings and arguments.
This dissenting opinion from the “liberal-leaning” side of the court, alongside the generally-conservative Chief Justice John Roberts, shows the severity of the threat that the shadow docket serves to American democracy. The American government system is set up with checks and balances to ensure that no one branch of government is over-exerting its power. The Supreme Court is the highest in the land, and the process of challenging a decision made by it is difficult, so seeing the Court act in such a unilateral manner as using the shadow docket is troubling.
The implications of the shadow docket on American democracy
The Supreme Court is considered the check that balances the other two branches of the government. Although, these recent events have caused people to question whether the actions and decisions being taken by the Supreme Court are as “fair” as they are supposed to be. “Without the full process of hearing the arguments from both sides, and their decision being released with a formal written opinion, the American people are left to wonder if the Court is making its decisions based on the laws or its political allegiances,” says Ochoa.
As Ochoa explains, the Supreme Court can be held accountable for its decision-making process by increased public pressure. The American people generally don’t know about the existence of the shadow docket, much less what it is intended to do, so increasing awareness of its use could lead to the generalized outrage it would take to inspire real change. “It is unlikely that the emergency docket will go away entirely — there are valid reasons for its use, which will ensure that it stays in place,” Ochoa clarifies. “However, this attention could perhaps be what causes the Court to reconsider how it is used.”
As it is being used now, the shadow docket poses an urgent threat to the state of American democracy. Had these emergency proceedings been used as intended — for legitimate emergencies — this discussion about the role of the Supreme Court likely wouldn’t even be happening. Why should the highest court in the land, intended to be the ultimate check in the system of checks and balances, be allowed to operate without any checks of its own? It is time that we, as the American people, hold the Supreme Court accountable for its role in American democracy.