What’s in it for me? Discover how the Supreme Court uses procedural rulings to expand its authority and reshape the law.
Each June, the eyes of the legal community turn to the Supreme Court. As the Court winds down before its summer recess, its decisions in the most high-profile and hotly debated cases are revealed. Journalists rush to get their hands on the opinions, and interested parties comb through the pages to learn how the law of the land has been reshaped.
But there’s another set of Supreme Court rulings that trickles out as well – decisions that garner far less attention but are every bit as influential. These rulings come from the so-called shadow docket. And Stephen Vladeck argues that they’re causing grave harm to the American legal system and to the legitimacy of the Supreme Court as an institution.
In this Blink, we’ll explore how shadow docket decisions differ from the merits docket handed in by the Court every June. We’ll highlight a few shadow docket cases that have had profound impacts on American law and society, and explain why the Supreme Court’s use and abuse of the shadow docket is so troubling.
The shadow docket is the agenda for the Court’s many procedural decisions
So, what is the shadow docket, exactly? There are a few types of decisions that fall under this category. One occurs when the Supreme Court agrees to take a case, hear arguments, and issue a formal ruling. This is what’s known as granting certiorari.
Issuing injunctions is another part of the shadow docket. This is when the Supreme Court orders a party, such as a plaintiff or a lower court, to start or stop what they’re doing. In practice, this can mean striking down a law while litigation is ongoing, or compelling lower courts to keep the law in place. While these choices may appear mundane and inconsequential on the surface, they can make a major difference in the law.
These shadow docket rulings constitute a whopping 99 percent of the Supreme Court’s decisions. But sheer volume isn’t the main issue. It’s that these rulings are delivered anonymously and without explanation. All the Court has to provide is a one-sentence declaration, and their dictums carry weight.
Another issue is the nature of these rulings. Since the Supreme Court first convened in 1790, there have, of course, been many procedural rulings. But the kinds of rulings made today are different.
Since the mid-2010s, Vladeck argues, the shadow docket has been used to change the law in major ways. From elections to immigration to capital punishment, shadow docket decisions have shifted several aspects of the law to the political right. And while it’s one thing for the Court to rule “on the merits” one way or the other, using these procedural decisions to transform American law is an abuse of the Court’s authority.
In the next section, we’ll look at practical examples of how Vladeck believes the shadow docket has been abused for partisan gain.
The Trump administration’s impact on the shadow docket
When the Supreme Court grants emergency relief, it’s supposed to be for emergencies – extenuating circumstances that would cause irreparable harm if relief weren’t granted. For most of the Supreme Court's history, administrations of both parties have asked for emergency relief sparingly. During the 16 years of the George W. Bush and Barack Obama presidencies, there were only eight such requests – four of which the Court granted, and four that were denied.
But this changed with the Trump administration. In just four years, the solicitor general, who represents the federal government in court, issued 41 requests for emergency relief. And of the 36 that received a formal response from the Supreme Court, 28 were approved. This emergency relief usually came in the form of blocking lower court rulings that disfavored the Trump administration. As a result, a number of policies that lower courts ruled unlawful were allowed to go into effect.
To see the practical consequences of this new posture toward emergency relief, let’s consider the three iterations of the Trump administration’s travel ban. In January 2017, an executive order barred the entry of foreign nationals from seven predominantly Muslim countries for 90 days. Within days, five different federal judges blocked the order. When the Trump administration asked the court of appeals to reinstate the travel ban, it refused.
Rather than appealing to the Supreme Court, the administration amended the travel ban to make it slightly less restrictive. Again, federal courts blocked the order, and the court of appeals reaffirmed the block. Now, though, the administration did appeal to the high court. In June of 2017, the Supreme Court, in an unsigned opinion, allowed part of this second travel ban to go into effect, pending further litigation. The Court also said it would consider the case on the merits in the next term.
But before the case was considered, Travel Ban 3.0 was put in place. Again, the lower courts intervened to block it. The Supreme Court, though, allowed it to go into effect while it considered the case. In June of 2018, the Supreme Court in Trump v. Hawaii upheld Travel Ban 3.0 as constitutional. By then, it had already been in full force for six months.
In addition to the travel ban, the Supreme Court allowed a slew of other Trump administration policies to go into effect, despite being struck down by lower courts. These included an attempt to curtail transgender people serving in the military and a rule preventing migrants from seeking asylum in the United States if they passed through another country on the way.
Unlike the travel ban, however, the Supreme Court didn’t grant cert to these cases – let alone uphold their legality. Instead, these policies stayed in place until they were overturned by the Biden administration – even though not one court had found them legal.
Vladeck argues that the Trump administration, knowing their policies would eventually be overturned by the next Democratic administration, had no intention of winning these cases on the merits. Instead, they were looking for short-term political victories via emergency relief. And the Supreme Court was all too willing to aid them in this effort, allowing policy without law to become the new normal.
In the next section, we’ll explore how the Court has recently used similar tactics to influence elections.
How the shadow docket helps influence elections to favor Republicans
To understand how the shadow docket is used to help sway elections, it’s important to first consider two Supreme Court cases. The first is the 2006 case of Purcell v. Gonzalez, which regarded Prop 200 – an Arizona ballot initiative that established stricter voter ID requirements for in-person voting. The law was challenged in court on the grounds that it had a disparate impact on minority voters, thus violating both the Constitution and the Voting Rights Act.
Despite lower courts blocking Prop 200 from going into effect for the 2006 election, the Supreme Court ruled that it could. What’s more, the Court established what’s called the Purcell Principle. This new legal doctrine states that courts should generally not intervene in election disputes or change their rules in the lead-up to election day, because doing so might confuse voters or election administrators.
And while this principle may seem reasonable in theory, it’s had a different practical effect. First, it’s enabled state and local officials to put in place restrictive voting laws or rules ahead of elections. Second, it’s tied the lower courts’ hands so that they won’t intervene during this process. In other words, the Purcell Principle has made it easier for officials to violate the law with impunity for at least one election cycle, before faulty laws can be struck down on the merits.
The Supreme Court’s decision in Shelby County v. Holder, which was decided on the merits, has made this problem even worse. In 2013, the Court overturned a provision of the Voting Rights Act that required certain jurisdictions with a history of discrimination to receive “preclearance” from the Justice Department before changing their election rules. The preclearance requirement, which was meant as a safeguard against disenfranchising minority voters, was now gone. Coupled with the Purcell Principle, the Shelby decision made it even easier for states in the Deep South to restrict the ability to vote.
Take Georgia, for instance. In 2021, Governor Brian Kemp waited a month before signing into law a bill that redesigned the state’s congressional districts. The new law was challenged, and in 2022, a district court found that it violated the Voting Rights Act. However, per the Purcell Principle born from the shadow docket, the court allowed the law to go into effect because the primary elections were just around the corner. As a result, Georgia voters were stuck voting in districts whose design violated their civil rights.
The Supreme Court also made a series of pandemic-related shadow docket decisions relating to election procedures, most of which helped Republicans. In Wisconsin, for example, a federal judge, citing processing delays caused by COVID-19, ordered an extension for receiving mail-in ballots for the spring 2020 elections. The Supreme Court overturned this ruling, invoking the Purcell Principle. Despite the havoc wreaked by the pandemic, Wisconsin residents were not allowed an extension – doing so was seen as the courts changing the rules on election eve.
And in Andino v. Middleton, the Supreme Court overruled a lower court’s decision to nix requirements that absentee ballots include witness signatures – a decision the lower court made in response to the dangers posed by COVID-19.
There is a clear common denominator in these decisions: they almost always help one political party over the other. By issuing shadow docket decisions that have the effect of suppressing minority turnout, making it harder to vote by mail, or diluting voting power through gerrymandering, Vladeck argues, the Supreme Court has again and again given an electoral advantage to Republicans.
How the shadow docket undermines the Supreme Court’s legitimacy
People’s faith in the authority of the Supreme Court is dwindling. And while some of this is due to a series of high-profile merits cases in recent terms, Vladeck thinks the shadow docket is making things even worse.
It isn’t simply the fact that these shadowy rulings are often unsigned, or that they’re coming in far greater frequency. It isn’t just that they come with no explanation – or that the rulings are often contradictory, with the only common thread being that they tend to favor a specific set of political priorities. It’s the combination of all of these factors that make the shadow docket so dangerous.
Even if you agree with the decisions the Court is making, there is still reason to be concerned. That’s because as the Supreme Court’s legitimacy waivers, its power as a coequal branch of government does, too. By design, the court lacks the power to enforce its own decisions. In this sense, it relies on others to turn its judgments into law. But when people feel like they can no longer rely on the Supreme Court to make proper judgments – based on legal principles and not politics – the Court is put in peril.
So, how can the dangers posed by the shadow docket be overcome? One way is to bring it into the light of day. Fortunately, this has started to happen. For far too long, the major merits decisions trumped the shady procedural ones. But journalists and legal scholars across the aisle have begun to take notice. The conservative lawyer Donald Ayer, for example, harshly criticized the shadow docket in 2021. Ayer, who served as the Deputy Attorney General for George H. W. Bush called out the Court’s “brashness” for reaching radical decisions while bypassing the proper channels of argument and explanation.
Even members of the Supreme Court itself have become increasingly frustrated by the nature of the shadow docket. Justice Elena Kagan has frequently chastised the Court’s “scanty review” of shadow docket cases that have had major legal repercussions.
It’s Chief Justice John Roberts, however, who Vladeck deems as the most important figure in fighting back against the shadow docket. Despite his habit of siding with the other conservative justices on the merits docket, Roberts hasn’t been afraid to dissent in shadow docket cases. Between October 2020 and April 2022, Roberts joined the liberal justices in dissent in seven such cases. In his dissents, he was careful not to tip his hand as to how he would vote if the cases were granted cert. But he did make clear that he thought the shadow docket was the wrong place for the Court to overturn precedent or rewrite the law.
In doing so, he has seemingly become the only justice on the Court to repeatedly vote against their own policy preferences in order to critique the insidious methods of the shadow docket.
Final summary
The Supreme Court is increasingly relying on procedural decisions to transform American law and society. These shadow docket rulings come without formal arguments, votes, or lengthy opinions. Instead, they’re often issued anonymously and remain unexplained, leaving observers to guess how the decisions were made. What’s more, these decisions almost always seem to aid the political objectives of Republicans – whether it’s allowing legally dubious Trump administration policies to go into effect during litigation, or overruling lower courts on election-related cases. These shadow docket decisions aren’t simply an affront to judicial transparency; they’re a threat to the Court’s credibility as well.