The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Who could have imagined that the phrase "shadow docket" would take off? What was once a clever, but obscure term in Will Baude's scholarship has become yet another fulcrum in debates about the Supreme Court. Justice Breyer used the phrase in an interview, and Justice Kagan dropped it in her WWH dissent.
Perhaps the most common criticism of the shadow docket is that the Justices are deciding cases too quickly, without the benefit of full-dress briefing and oral arguments. The Court could address this criticism by simply accelerating the time it takes to resolve a case.
On Wednesday evening, the Court took that action. The Justices moved a capital case from the shadow docket to the rocket docket. In Ramirez v. Collier, a Texas death row inmate wanted his preacher to lay hands on him during the execution. The Fifth Circuit denied a stay of execution. The Supreme Court could have granted a stay of execution. Or it could have denied a stay of execution. Instead, the Justices–without noted dissent–took door number 3. The Court granted cert, and called for a super-expedited briefing schedule:
The Clerk is directed to establish a briefing schedule that will allow the case to be argued in October or November 2021.
In theory at least, the Court could resolve this issue before Thanksgiving. Perry v. Perez (2012) followed a similar trajectory. The case was granted on December 9, 2011, argued on January 9, 2012, and decided on January 20, 2012.
The rocket docket approach will not work for all emergency stay applications. Some cases truly need to be decided in the span of days, if not weeks. But Ramirez is a good vehicle. In recent years, the Court has been asked to decide many cases involving religious leaders during executions. Deciding this case on the merits would help settle the doctrine, and give guidance to the lower courts.
I hope we have more of these rocket docket cases. Decide the matters quickly, but deliberately.