Just read a Reuters article that has me incredibly upset: Supreme Court Shadow Docket

“Narratives about the Supreme Court and its regular docket are increasingly incomplete,” says Stephen I. Vladeck, a law professor at the University of Texas at Austin, who has also written about the shadow docket.

This specialized docket has become increasingly important in three ways, Vladeck says.
First, there are many more significant rulings coming out of the shadow docket than in even the recent past, he says.

“Some of that is by fortuity and some by design,” he says.

Second, the federal government has been especially aggressive in taking advantage of the shadow docket, often bypassing federal appeals courts to ask the high court to block or undo federal district court actions, Vladeck says.

And third, the court’s conservative and liberal blocs have split sharply, and sometimes bitterly, in this specialized area, he says. The court had decided 11 shadow docket matters by a 5-4 vote this term as of Aug. 11, almost equaling the dozen 5-4 decisions among the 53 decisions stemming from argued cases this term. (The counter is still running on the shadow docket because the 2019-20 term runs until the new term begins in October.)

“The shadow docket looks to be a heck of a lot more polarized than the more visible work of the court,” Vladeck says.

Hot-button categories

Whether they were decided 5-4 or by some other lineup, shadow docket actions this term mostly fell into three prominent categories.

COVID-19: The court in May denied a request from a California church for relief from the California governor’s orders limiting attendance at places of worship because of the coronavirus pandemic. And in July, Chief Justice John G. Roberts Jr. joined with the court’s liberal bloc to turn away a Nevada church’s similar request for relief from state attendance limits. Justice Samuel A. Alito Jr., in a dissent in the Nevada case, said the court was joining with the state in discriminating in favor of the powerful gaming industry.

“The Constitution guarantees the free exercise of religion,” Alito wrote in Cavalry Chapel Dayton Valley v. Sisolak. “It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance.”

Election issues: Several emergency applications this term have involved election matters, with a subset of those stemming from COVID-19 concerns. The court sided with state officials on several issues, such as blocking pandemic-motivated lower court orders that had expanded procedures for gathering signatures for ballot initiatives in Idaho and Oregon while allowing Rhode Island to suspend its requirement that absentee ballots have in-person witness verification.

In April, the court stayed a lower court injunction that would have required Wisconsin to count absentee ballots postmarked after the state’s primary election date. The majority in an unsigned opinion said it was not expressing an opinion on the broader question of whether election procedures should be altered in light of COVID-19. Justice Ruth Bader Ginsburg, writing in dissent for the court’s liberal bloc, said the majority’s “suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.”


Trump administration policies: Two rulings granted the Trump administration’s requests to lift injunctions blocking new rules that tightened the admissibility of immigrants who might become a “public charge,” or dependent on welfare or other public benefits. Another ruling turned away a request from opponents of the president’s border wall to order a temporary stop to construction. And the court granted the administration’s requests to remove lower-court stays blocking the first three federal executions in a generation.

In February, in one of the cases about the public charge rule, Justice Sonia Sotomayor expressed frustration, as she had in the previous term, about the Trump administration’s shadow docket tactics.

Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.

The Ju- diciary Act of 1789 contained numerous provisions relating to the times and places for holding court, even of the Supreme Court, to times of adjournment, appointment of officers, issuance of writs, citations for contempt, and many other matters which it might be supposed courts had some authority of their own to regulate.1248 The power to enjoin governmental and private action has frequently been curbed by Congress, especially as the action has involved the power of taxation at either the federal or state level.1249 Though the courts have variously interpreted these restrictions,1250 they have not denied the power to impose them.

Reacting to judicial abuse of injunctions in labor disputes,1251 Congress in 1932 enacted the Norris-La Guardia Act which forbade the issuance of injunctions in labor disputes except through compliance with a lengthy hearing and fact-finding process which required the district judge to determine that only through the injunctive process could irremediable harm through illegal conduct be prevented.1252 The Court seemed to experience no difficulty in upholding the Act,1253 and it has liberally applied it through the years.1254

Congress’s power to confer, withhold, and restrict jurisdiction is clearly revealed in the Emergency Price Control Act of 19421255 and in the cases arising from it. Fearful that the price control program might be nullified by injunctions, Congress provided for a special court in which persons could challenge the validity of price regulations issued by the government with appeal from the Emergency Court of Appeals to the Supreme Court. The basic constitutionality of the Act was sustained in Lockerty v. Phillips.

“Stay applications force the court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument,” she wrote. “They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay.”

And “perhaps most troublingly, the court’s recent behavior on stay applications has benefited one litigant over all others,” Sotomayor said, referring to the federal government.

Danger of ‘irreparable harm’

“Sotomayor has been sounding the alarm” about the administration’s approach, says Vladeck.

Since Trump took office, the Supreme Court had granted 22 stay requests as of mid-August, in whole or in part, from the federal government. In the 16 combined years of the President George W. Bush and President Barack Obama administrations, the court granted only four such emergency requests from the federal government.