The Shadow Docket: SCOTUS and the Court of Public Opinion

By Sabrina Page

Abortion, guns, and religion. The U.S. Supreme Court has already heard cases on all three during its current argument session. With some of the country’s most controversial constitutional issues on the docket, it is paramount that the public trusts the Court to be independent in their decision-making. Without this trust, the Court risks losing its legitimacy as a judicial body. The Supreme Court has not been spared from today’s political polarization. Legal scholars and ordinary observers alike have pointed out the apparent partisanship of the Court’s rulings since Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsberg, creating a conservative majority. The shadow docket, and its policy implications, are increasingly becoming an important part of the conversation surrounding the Court’s independence and legitimacy.

Shadow Docket Explained:

Coined in 2015 by Chicago law professor William Buade, the shadow docket refers to decisions the Supreme Court makes on an expedited basis without hearing oral arguments or issuing a full briefing to explain the opinion. These scant opinions could theoretically represent the views of a single justice, hence, the shadowy nature. Such decisions could place a hold on a lower court’s injunction or issue a direct injunction on local regulation. The most common of these has classically been appeals regarding death penalty cases through what is called a petition for writ of certiorari. The potential consequences of these legal maneuvers are significant, though they may seem arcane to most nonlawyers.  

Recent Uptake in Shadow Docket Decisions:

In the last several years, the size and scope of the shadow docket have grown. During the four years President Trump was in the White House, the administration filed 41 of these emergency applications — 20 times the rate of either the Obama or Bush administrations — and won 68% of them. For example, in January 2019, the Court granted the Trump administration’s request to ban transgender troops from the military in an order of only four sentences.

Since President Biden came into office, the Court has appeared less inclined to act on emergency requests. In their first application, the Biden administration raised concerns over a Texas district court’s injunction requiring reinstatement of Trump’s Remain in Mexico policy, which returns asylum-seekers across the border into Mexico while their cases are processed, only to have the Supreme Court deny them relief.

Many controversial shadow docket decisions have come out of the COVID-19 pandemic. In Tandon v. Newson, the Court granted an emergency injunction to a plaintiff who claimed California’s strict COVID protocols infringed upon their religious freedoms by restricting their ability to gather indoors for religious activities. Similar cases regarding New York have also garnered this Court’s sympathy. These actions warrant some skepticism as to whose concerns and which rights this Bench views as the most dire need for intervention. However, the Court’s abridged explanations have denied the public the information necessary to answer these questions.

The Court’s Response to SB8:

The Court declined to take action to halt the Texas abortion ban this Fall, calling public attention to the shadow docket. In May of 2021, Texas Gov. Greg Abbott signed Senate Bill 8 into law, deputizing average citizens to enforce a ban on abortions after six weeks. Soon after, women’s health providers and pro-choice advocates brought a case to the Fifth Circuit in Whole Woman’s Health et al. v. Jackson et al. to challenge the law as unconstitutional. They sought action from the circuit court to block the law before it went into effect on Sept. 1. After exhausting all options to halt the law at the district court level until it could be argued and ruled on in full, plaintiffs filed an emergency request for an injunction with the Supreme Court on Aug. 30, 2021. This request was denied, halting all abortion access after six weeks of pregnancy in Texas, contrasting past shadow docket decisions where the Court did grant emergency injunctions. In their dissenting opinion, the Court’s three liberal justices wrote, “the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasonable, inconsistent, and impossible to defend”.

This decision prompted the Senate Judiciary Committee to hold a hearing on “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket.” It was during this hearing that shadow docket expert and Texas Law Professor Stephen Vladeck decried how this decision in the Texas abortion case contrasts with shadow docket decisions defying COVID-related laws in California and New York. “[The decision] leaves the impression that the same five Justices were willing to bypass procedural roadblocks on the shadow docket to expand religious liberty, but relied upon open procedural questions that they wouldn’t resolve to justify not protecting a clearly established constitutional right,” Vladeck argued during the Sept. 29 hearing.

About a month later, the plaintiffs requested to essentially bypass further proceedings in the Fifth Circuit and go straight to SCOTUS. With all eyes now on the Court, the petition was granted, expediting that case along with the Department of Justice’s challenge to the same law. On Nov. 1, the hearings kicked off in both Whole Woman’s Health v Jackson and United States v. Texas. 

Many who watched the proceedings noted the questioning of conservative Justices Kavanaugh and Barrett seemed to demonstrate skepticism to the legitimacy of the law’s enforcement mechanism. 

“There’s a loophole that’s been exploited here or used here … It could be a free exercise of religious rights. It could be Second Amendment rights if this position is accepted here,” noted Kavanaugh. The latest behavior from even the Court’s staunchest conservatives suggests the power of public scrutiny to compel impartiality from the Justices. 

On Dec. 10, the Court once again affirmed SB8’s standing while ruling that abortion providers could continue suing certain state officials enforcing the abortion ban which alone would not stop the effects of SB8. In a shadow docket ruling on Friday, the justices also dismissed the lawsuit against the law brought forward by Biden’s Justice Department. In January 2022, the case was sent to the 5th U.S. Circuit Court of Appeals to determine whether it should be resolved in Texas Supreme Court, federal district court, or simply ruled on after SCOTUS decides the fate of the Mississippi abortion case. Representatives of the abortion provider – objecting to the 5th Circuit’s role in weighing in at all and noting the significant delay that would be caused by sending the case to the Texas Supreme Court– have requested the U.S. Supreme Court step in. 

This is certainly not the end of the chaos created by SB8. Republican leaders in several states such as Florida and South Dakota continue to push more restrictive abortion bans akin to Texas. And recently, California’s Gov. Gavin Newsom issued a statement that he would pursue similar legislation in California giving citizens the power to sue anyone that “manufactures, distributes, or sells an assault weapon or ghost gun kit or parts” for damages. 

The Official Docket this Term:

From the official docket this term, we can expect, “front and center, massive social issues that it has ducked in the past because it couldn’t get five solid conservative votes to change the law,” according to Tom Goldstein, publisher of SCOTUSblog.

On Nov. 3, the Court heard arguments in New York State Rifle & Pistol Association v. Bruen, the first 2nd amendment case in over a decade. Here, the Court will need to determine how far the Constitution protects individuals’ rights to keep and bear arms. It concerns a New York state law requiring individuals who want to carry a concealed weapon to prove they need it for protection.

Religion is also on the official merit docket. The Court heard arguments in another Texas case, Ramirez v. Collier, in which an individual on death row claims his rights to religion were violated by the Texas Department of Criminal Justice by denying his pastor from laying his hands on him and praying aloud during his execution. Earlier this fall, the Court postponed Mr. Ramirez’s execution in order to hear his claims.

Most recently, the Court ruled on January 13, 2022, against President Biden’s vaccination mandate directed at large businesses which would require companies with over 100 employees to enforce them to either be fully vaccinated against COVID-19 or submit to regular testing and masking. The Court shut down this directive from the Occupational Safety and Health Administration but upheld vaccine requirements for healthcare workers issued by the US Department of Health and Human Services’ Centers for Medicare & Medicaid Services.

And while the Texas abortion cases challenge the procedural legitimacy of the SB8 itself, another case before the Court, Dobbs v. Jackson Women’s Health Organization, deals more directly with the constitutional right to abortion protected by Roe v. Wade. On Dec. 1, the Court heard an appeal from the last remaining abortion clinic in Mississippi to overrule a lower court’s decision to strike down their law banning abortions after 15 weeks. 

A Call for Judicial Transparency:

With some of the most controversial political issues on the official docket this term, the independence of the Court is crucial. But if Supreme Court Justices are seen as political partisans, the Court’s authority is called into question. Even some of those within the court have shown concern over shadow docket decision-making. In her dissenting opinion, Justice Sotomayor warned: “the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s ‘reflexiv[e]’ requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.”

We are currently witnessing that cost as the erosion of public trust in the Court’s legitimacy. Judicial actors must be held to account just like political leaders. Despite the complexities of their rulings, people must pay attention to these decisions and call for greater transparency in the judicial process. In order for the decisions made on the merits docket to hold weight, the Court must stop their shady practices on the shadow docket.