The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Shadow Docket and the Rocket Docket: Losing Fast and Slow
Are critics of the shadow docket satisfied that the Supreme Court is deciding urgent cases after full briefing and oral argument?
In September, the Supreme Court granted certiorari in Ramirez v. Collier, and set a super-expedited briefing schedule. At the time, I wrote "the Justices moved a capital case from the shadow docket to the rocket docket." I think I was the first person to use the phrase "rocket docket" in the context. Over the past four months, the term has caught on, as the Justices have chosen to accelerate several cases rather than decide them summarily. In addition to Ramirez, the Court placed the S.B. 8 cases on the rocket docket. And the COVID mandate cases were given similar treatment. Here, the Justices have demonstrated that they can resolve high-profile cases in a very short-time frame. In my view, this experiment has been something of a success.
Now, how did we get here? I think the Court launched the rocket docket in response to the incessant public criticisms over the shadow docket. Indeed, Justice Kagan objected to the shadow docket in her Whole Woman's Health I dissent. And, Justice Breyer used the phrase in an interview.
In Whole Woman's Health II and NFIB, the conservative Justices followed a regular process to rule against a progressive policy. These were full rulings on the merits. And even more importantly, the Court set important precedents that would extend far beyond these case.
Are critics of the shadow docket satisfied now? All things considered, what would the Biden administration really have preferred? A one paragraph shadow docket entry staying the OSHA mandate? Or a 9-page opinion that adopts a rigorous reading of the major questions doctrine, and constrains all facets of federal power? All things considered, what would the abortion providers really have preferred? A one paragraph shadow docket order that denied a stay? Or a lengthy opinion endorsing the reasoning of S.B. 8, which allows other states to carbon-copy the approach?
In many ways, losing fast on the shadow docket is more advantageous than losing slow on the rocket docket. One of the strongest arguments in favor of the shadow docket is that the Court can avoid setting important precedents in a hurried fashion. An unexplained summary order would only govern one case. But once a case is briefed, and argued, the opinion must set a new precedent.
I think after this term, criticism of the shadow docket will fade.
