When exactly did the shadow docket begin? People are now arguing about what was the first relevant shadow docket case, but those disagreements turn on stated and unstated assumptions. The answer depends on how you define the shadow docket. I need to give some more thought to exactly what the "shadow docket" is.
My colleague Stephanie Barclay suggests that the shadow docket actually began on New Year's Eve 2013 when Circuit Justice Sotomayor granted emergency relief to the Little Sisters of the Poor.
I wrote about this moment at some length in Chapter 15 of my 2016 book, Unraveled: Obamacare, Religious Liberty, and Executive Power. I will include an excerpt of the book after the jump.
Here, I will offer a few reasons why the Little Sisters order can be distinguished from the Clean Power Plan order about two years later. This ruling may still qualify as the first shadow docket entry under certain assumptions, but I have some doubts.
First, the Little Sisters of the Poor were only seeking an exemption for themselves. Other litigation had been filed throughout the country by other religious non-profits. Almost all of those courts had granted emergency relief to the plaintiffs. Only two plaintiffs were denied relief: the Little Sisters of the Poor and Notre Dame University. Notre Dame did not file an emergency appeal to the Supreme Court. Instead, they caved and made coverage of emergency contraception available under their plan. The Little Sisters, represented by the Becket Fund, would file an emergency application with Circuit Justice Sotomayor. With modern emergency docket litigation, plaintiffs often seek universal relief, whether through nationwide injunctions, vacatur, certified classes, or broad associational standing. Outside death penalty cases, it is rare for the Supreme Court to grant emergency one-off relief. Mirabelli is one such case.
Second, the Clean Power Plan litigation was somewhat unique in that the case began at the D.C. Circuit. There were no district court proceedings. Moreover, the Supreme Court issued its stay of the executive action before the D.C. Circuit had an opportunity to rule. By contrast, for the contraception mandate, the District Court and the Tenth Circuit both denied relief after full briefing and consideration. Justice Sotomayor's order in no way short-circuited the appellate process. Moreover, Sotomayor did what virtually every court had done at that point.
Third, on December 31, 2013, Justice Sotomayor granted what we would now call an administrative stay:
IT IS ORDERED that [the government is] temporarily enjoined from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2014, by 10 AM.
To be precise, if the shadow docket was born with the Little Sisters, the birth occurred twenty-one days later on January 24, 2014, when the full Court issued a one-paragraph order:
The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.
A few things stand out here. The Court to did not enjoin the contraceptive mandate altogether. It granted relief to one party, and only one party. There was no suggestion at the time this ruling set a precedent, which other parties could rely on. Notre Dame, which did not appeal, did not benefit from this ruling. Instead, the Court effectively granted an accommodation to a single plaintiff. This sort of tailored remedy stands in stark contrast with the sweeping relief granted in the Clean Power Plan case. That ruling completely enjoined the policy nationwide.
Fourth, in the Clean Power Plan case, it is pretty clear the Obama Administration was trying to rush the policy to "bake it in" before the Supreme Court could review it. Will Baude suggested that the Chief Justice was "concern[ed] that the executive branch [was] openly circumventing the federal courts." The Obama Administration was not trying to circumvent all federal court review. They were content to run out the clock in the favorable D.C. Circuit. DOJ was trying to avoid Supreme Court review. There was some gamesmanship.
But I don't think there was a similar gaming for the contraceptive mandate. The ACA statute provided that the employer mandate would go into effect on January 1, 2014 (though the statute itself said nothing at all about contraception coverage). You may recall that initially, the Obama Administration argued that the "penalty" enforcing the individual mandate was a tax, and since the tax would not be collected until 2014, the challenge to Obamacare in 2010 was not yet ripe in light of the Tax Anti-Injunction Act. This was a clever way of "baking in" Obamacare before the Supreme Court could review it. But DOJ abandoned this strategy once they realized they needed the taxing power argument to save the law. There is lots of gamesmanship and playing keep-away from SCOTUS
Fifth, there is another reason to distinguish the Clean Power Plan and the Little Sisters of the Poor. This reason is somewhat political, but not really. There were no recorded dissents for the nuns. The Justices all likely agreed that the District Court in Colorado committed a clear error, and the ex ante status quo had to be preserved. In other words, the claim for legal relief was clearly established. That would seem to be a very strong factor in favor of granting emergency relief. The Clean Power Plan case split hard by a 5-4 vote. Such a sharp disagreement is almost certain proof that the basis for legal relief is not clearly established. This is what Justice Kagan wrote in her memorandum, and in many subsequent published dissents.
For these reasons, and others, I think it is tough to view the Clean Power Plan and the Little Sisters of the Poor on the same wavelength. I spoke with several DOJ lawyers at the time. They were a "little bit surprised" by the Court's ruling. But this reaction pales in comparison to the shock the Obama Administration had after the Clean Power Plan ruling, where the Justices bypassed the lower court altogether.
Here is an excerpt from Chapter 15, titled "New Year's Resolution." As I've noted in other contexts, I wrote this book behind the veil of ignorance. The shadow docket wasn't even a glimmer in my eye at the time. Indeed, if memory serves, I wrote this chapter before the Clean Power Plan ruling. (The book was sent to the press circa June 2016.)
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