What Should We Call the "Shadow Docket"?

Should it be the interim docket? The emergency docket? The emergency orders docket? The short order docket? Something else?

In today's New York Times, Adam Liptak reports on the emerging debate among commentators and Supreme Court justices about what to call the Supreme Court's docket of requests for emergency or interim relief.

As Liptak notes, this docket was initially coined the "shadow docket" by Will Baude in an article that sought to draw attention to this component of the Court's work, and bring it out of the shadows. Mission accomplished. This aspect of the Court's work is now analyzed and debated.

Now that the "shadow docket" is no longer in the shadows, does it need another name? As I noted here, Justice Kavanaugh thinks it should be called the "interim docket." Liptak reports on what other justices have said.

Justice Elena Kagan said in July at a judicial conference that she has used the term "shadow docket" in dissent "when I was feeling particularly annoyed." . . .

Justice Samuel A. Alito Jr. is not a fan of such critiques. In a 2021 speech, he said the term "shadow docket" was nothing less than an assault on the legitimacy of the court.

"The catchy and sinister term 'shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways," he said. "This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution."

Most justices seem to have settled on the "emergency docket" to describe the court's fast track. Justice Kagan said that was her preferred term, and Justice Amy Coney Barrett said the same thing last week on the "Advisory Opinions" podcast. . . .

Professor Baude, whose article started the debate, said last week that "interim orders docket" was fine with him. But he added that he regrets nothing about coming up with "shadow docket."

Comments

[Longtobefree]

How about "The docket made necessary by left wing judges who ignore precedent"?

[JoeFromtheBronx]

Now that the "shadow docket" is no longer in the shadows, does it need another name?

One person in the majority explained the big case last week.

The Supreme Court regularly rejects death penalty stays without comment.

Roberts agreed to an administrative stay even though the case seemed to be on all fours with a 1930s precedent. Without comment.

How is it "no longer in the shadows"? Because there is more reporting about it?

[Randal]

But it is less legitimate than the regular docket. Keep it as "shadow docket" so that it remains inferior. There's no reason to legitimize it.

[TheAmazingEmu]

How about the "unreasoned, unexplained docket"? Once Justices start claiming that the docket has precedential value, they owe a duty to explain their reasoning and, failure to do so, still leaves everything obscured.

[Morrowind542]

Interim or Interim Relief Docket is my favorite because it is the most direct, literal term for what the court is doing. In the same way we call the Merits Docket that because they decide the merits of the case, the Interim Docket is where they decide whether to grant relief or not in the interim. It may not have the same literary depth as Shadow Docket, but I think that only makes the case stronger - the court shouldn't be trying to be literary, it should be trying to be direct and easily understandable

[QuantumBoxCat]

It's the Original Actions Docket, which is what it's been called going back to 1829.

[Darwinnie]

I would think that refers to cases invoking the court’s original, not appellate, jurisdiction. Which are rare.

[QuantumBoxCat]

Historically, the Court used the "Appellate Docket" books to record cases that arrived at the Court via writ of error, appeal, certiorari, and certified question. The "Original Actions" docket books were used to record all other cases, including original jurisdiction, and those in which a party sought other relief, such as writ of prohibition, writ of mandamus, writ of habeas corpus.

I did notice that "Rule 17. Procedure in an Original Action", which falls under the heading "Other Jurisdiction", pertains specifically to original jurisdiction cases. Cases involving a petition for an extraordinary writ fall under Rule 20, which doesn't use the term original action. At some point the Court must have ceased using the term original action to refer to both types of cases.

[John 4]

Source?

[QuantumBoxCat]

Me

[John F. Carr]

The Undocket.

[ReaderY]

Justice Alito doth protest too much, methinks.

[MollyGodiva]

"The catchy and sinister term 'shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways"

Yes, and that is why the term Shadow Docket needs to continue.

Either that or the "Give Trump What He Wants Docket" or the "Path to Fascism Docket".

[Sarcastr0]

You can't fight catchy.

[Darwinnie]

How about the Republican Side Door?

[tuphat]

The End Run

[NvEric]

docket of requests for emergency or interim relief (dorfeoir)
better known as the Dorf Docket

[Alpheus W Drinkwater]

The Becausewesayso docket.