Saturday, October 16, 2021

SCOTUS: Shadow docket reduces transparency

| September 16, 2021 1:00 AM

In the last few years the U.S. Supreme Court has been quietly increasing a disturbing trend: Rulings without explanations.

The most recent example of the majority’s decision allowing Texas to ban nearly all abortions was different from most major rulings by the court. I don’t mean the merits, but the way they did it. None of the usual reasoning, explanations, or listings of legal precedents or principles — just a single, unsigned paragraph.

That’s radically different from most SCOTUS opinions — especially on major issues such as this. They tend to be quite long and explicitly reasoned, so governments and the public in general can know how and why they interpret the laws and Constitution the way they do.

Nor did they allow oral arguments from either side, during which lawyers typically make their cases and outline supporting law (they don’t have to allow oral argument, but on big issues they typically do). Questioning by the justices during argument also helps illustrate the court’s thinking.

They call it the shadow docket. In the shadow docket, the court makes decisions quickly, without the usual written briefings, oral arguments or signed opinions. Now the shadow docket has become a much larger part of the Supreme Court’s work.

There is a useful and traditional role for the shadow docket. A few matters are more routine or legally unambiguous. Plus, all the usual paperwork and argument on the non-shadow, “merits” docket take time, and sometimes urgent matters mean time is short, so shadow-docket treatment has been appropriate. Shadow docket rulings have shaped policy on voting rights close to an election, climate change, birth control, COVID-19 restrictions and an end to the eviction moratorium.

But several of the shadow docket cases they’ve decided in recent years have not been like that. Some of that increase was presidential. The Trump administration filed 36 such emergency applications for court consideration in less than four years. To compare, the administrations of Presidents George W. Bush and Barack Obama filed eight such applications over 16 years.

In the vast majority of cases, lawyers and the public need the longer fully explained, reasoned orders the usual process provides. That’s what business, government, the public and the lawyers asserting or defending their rights depend upon to understand how society is to operate.

SCOTUS is the final arbiter of constitutional principles and conflicting laws or rights, and because no two sets of facts and situations are exactly alike, without that explained reasoning we don’t know exactly where we stand or why.

That’s also important because unelected judges’ legitimacy and authority depends more upon reason. Taking that transparency away from the public without compelling justification, more than absolutely necessary, is undemocratic.

Nicholas Stephanopolous, a Harvard law professor, calls the idea of unexplained, unreasoned court orders contrary to the nature of our judiciary system. “If courts don’t have to defend their decisions,” he told The New York Times, “then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”

Overuse of the quick shadow docket with decisions applying to the entire country appears to increase the dominance of the Supreme Court. It also shields the majority from criticism, as there is no specific reasoning to intelligently criticize.

In the Texas abortion case example, the only reason the public even knows who voted for or against (which this time turned out along apparently partisan lines) is that the four justices in the minority each decided to release a signed dissent.

As states consider their own laws on this issue, how can they know where the lines, assuming there are any, must be drawn? If some states end up with statutes outside those invisible lines which are challenged in courts, the time, public expense and instability that ensues will be burdensome.

The House of Representatives had a hearing on the shadow docket earlier this year. Members of both political parties expressed disapproval of it.

The bigger the shadow docket becomes, the more lower federal court and state courts will struggle to decide constitutional issues. Courts depend on precedent and SCOTUS interpretation of constitutional principles to interpret and apply law. Without reasoned opinions from the highest court in the land, the law is left unstable.

That’s not good for society as a whole.


Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at