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Volokh Conspiracy

The Supreme Court's Shadow Docket


A while ago, Adam Liptak quoted me in a story about "the Supreme Court's unexplained orders," which have been unusually spotlighted in the news lately. I promised at the time that "My more extended thoughts on the court's orders docket will be coming out later this year in the NYU Journal of Law and Liberty's Supreme Court issue."

That article, The Supreme Court's Shadow Docket, is now on SSRN. Here's the abstract:

The 2013 Supreme Court Term provides an occasion to look beyond the Court's merits cases to the Court's shadow docket—a range of orders and summary decisions that defy its normal procedural regularity.

I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, and should make us skeptical of proposals to depersonalize the Court.

Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Court's practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Court's selections are fair.

I catalogue the Roberts Court's summary reversals and suggest that they can be grouped into two main categories—a majority that are designed to enforce the Court's supremacy over recalcitrant lower courts, and a minority that are more akin to ad hoc exercises of prerogative, or "lightning bolts." The majority, the supremacy-enforcing ones, could be rendered fairer through identification of areas where lower-court willfulness currently goes unaddressed. We may simply be stuck with the lightning bolts.

My article also contains a special note of thanks to readers of this blog, where some of my thoughts on the Court's orders first appeared. So thanks again.

I'm looking forward to seeing the rest of the issue, which I'm told should be out soon.