Law & Government

Abolish the Supreme Court Shadow Docket

Justice Kagan is right.


In April, the U.S. Supreme Court voted 5–4 to reinstate an Environmental Protection Agency rule promulgated during the Trump administration. Why? The majority did not explain, and it did not have to, because the case, Louisiana v. American Rivers, was decided on an emergency basis. Without receiving briefs on the merits from the parties or hearing oral arguments, the majority simply granted a motion to stay a lower court's decision.

Critics call emergency actions like this the "shadow docket." It is, as University of Chicago law professor William Baude describes it, "a range of orders and summary decisions that defy [the Court's] normal procedural regularity." The shadow docket's foremost foe is Justice Elena Kagan, who dissented in American Rivers, joined by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. "The Court goes astray," Kagan declared, by turning the emergency docket into "another place for merits designations—except made without full briefing and argument."

Kagan had a point. "No one can read the opinion unless the court writes it," George Washington University law professor Richard J. Pierce Jr. observed in a letter to The Wall Street Journal. "That is the problem with the shadow docket." The outcome in American Rivers may have been beautifully reasoned and correctly reached. But we have no way of fully assessing the decision, because the majority offered no rationale.

Until recently, complaints about the shadow docket have come mostly from liberal legal experts and activists, because the Court's biggest recent emergency interventions have mostly aligned with conservative policy preferences. But the politics flipped in May with the Court's emergency ruling in NetChoice v. Paxton. Without merits briefing or oral arguments, the Supreme Court prevented Texas from enforcing a law that would have compelled social media platforms like Twitter to host speech they do not want to host.

Many conservatives were unhappy about that. As Politico noted, "progressives outraged over the use of the Supreme Court's emergency 'shadow docket' to resolve legal fights over issues like abortion and immigration got some company this week from an unexpected group—conservative skeptics of the tech industry." It is "frankly ridiculous" that NetChoice, the trade group that challenged the Texas law, "is using the shadow docket," complained Rachel Bovard of the Conservative Partnership Institute. "It's so arrogant that they would put this in front of SCOTUS right now."

Now that conservatives are starting to realize that living by the shadow docket also means dying by the shadow docket, perhaps they will give Kagan's valid critique a second look.