The Shadow Docket, by Stephen Vladeck
Review by Dave Gamrath
One-liner: In his book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, author Stephen Vladeck provides a deep-dive as to how the Supreme Court’s “shadow docket” is being misused to promote conservative values and Republican political goals.
Book Review:
Historically, the normal operating procedure for the Supreme Court of the United States is to rule upon cases brought to the court on what is known as the “merit docket.” Cases heard by the Court on the merit docket result in “lengthy, signed opinions accompanied by separate concurring or dissenting opinions months after multiple rounds of briefing and oral arguments.” American citizens may not agree with a decision, but at least we are provided with extensive detail and transparency regarding how the Court arrived at its rulings.
Due to Republican shenanigans, the Supreme Court moved from a moderately-conservative 5-4 majority in January 2016 to a 6-3 ultra-conservative majority by the 2020 November election. Republicans refused to even allow a vote on President Obama’s pick for the Court to replace the deceased Justice Scalia, stating that Scalia’s death in February 2016 was “too close” to the November 2016 election. Yet, when Justice Ruth Bader Ginsburg died only six weeks prior to the 2020 election, Republicans rushed to vote in her replacement, the conservative Amy Coney Barrett. As expected, this has resulted in many far-right Court decisions on the merit docket. What was not expected was the stupendous growth in decisions on the Court’s “shadow docket” that have also moved the country far to the right.
In his book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, author Stephen Vladeck explains how the term “shadow docket” was first coined in 2015 by a conservative constitutional law professor to describe Supreme Court actions on everything other than the merit docket. Traditionally, the shadow docket was where the Court ruled on procedural matters, such as scheduling, and had little importance to anyone beyond the litigating parties. As a result, cases on the shadow docket, as opposed to those on the merit docket, typically do not receive extensive briefing or a hearing. The decisions receive little to no explanation, are unsigned, have no tally on how the justices voted, and are often released in the middle of the night.
As common with merit docket rulings, shadow docket rulings are also often divided upon ideological lines. Vladeck writes that “since 2017, the justices have been utilizing these orders far more often, and with far broader effects, than ever before.” For the first time, the Court now commonly edicts that “these unexplained rulings are precedents that lower courts and government officials are bound to follow,” i.e., shadow docket rulings are often as powerful as merit docket rulings. Vladeck explains how the new conservative Court is using the shadow docket both preemptively and prematurely to shift American laws “definitively to the right” on some of the country’s most heated political matters. It comes down to this: “unsigned and unexplained orders are now routinely used to determine whether state and federal policies affecting all of us, and perhaps even the exercise of our constitutional rights, will or will not be enforced for years to come.”
Vladeck bluntly calls this a “power grab.” Shadow docket rulings have skyrocketed. During the Court’s annual term starting October 2020, “the shadow docket made up almost 99 percent of the Court’s actual decisions.” In contrast, merit docket rulings have reached all-time lows. The Court has used the shadow docket to rule on issues “from abortion to asylum; from elections to evictions to executions; from Covid vaccinations to the Clean Water Act; and from redistricting to religious liberty,” i.e., issues at the heart of American politics today. The shadow docket has become “a place to achieve political victories, not legal ones.”
In reporting this story, Vladeck includes an interesting history of the Supreme Court, going back to its inception, and explains how the shadow docket originally came into existence. Within this history, Vladeck defines various legal procedures, such as amicus briefs and Grant, Vacate, and Remand (GVR) orders. Vladeck explains “how capital punishment gave rise to the modern shadow docket” over the past decades, especially with the sharp rise in executions during the Trump Administration. He also explains “how the Trump administration blew up the shadow docket.” How so? By having Trump’s solicitor general use “aggressive litigation tactics to sidestep legal challenges to the administration’s policies” through the use of the shadow docket, and how the conservative justices on the Court actually “enabled and invited” the Trump administration to pursue the shadow docket for “political victories in cases it was destined to lose on the merits.” Trump’s solicitor general sought shadow docket rulings from the Court twenty times as often as did Bush’s or Obama’s.
Vladeck does a deep dive into how the Court abused the shadow docket to expand religious liberty, especially regarding COVID restrictions. The Court moved quickly to strike down COVID public health measures that resulted in any restriction of religious gatherings, with unsigned, unexplained rulings consistently in favor of the church over the state. Vladeck calls many of these rulings “flagrantly unconstitutional.” Vladeck also covers how the Court blatantly “uses the shadow docket to help Republicans.” In 2013, the Court basically gutted the Voting Rights Act on the merits docket, but since has used the shadow docket to further Republican efforts to restrict votes that might not go their way.
More concerning, the Court often establishes rules favoring Republicans, then violates those same rules in other cases if necessary to keep allowing Republicans wins. Vladeck writes that “worse still, that partisan trend appeared to be the most consistent thread running through an otherwise inconsistent series of holdings in which the Court cited.” Court flip-flopping has distressingly become the norm.
Vladeck stresses that he doesn’t have issues with the shadow docket itself, just with how the Court is misusing it. He believes that we have reached a “full-blown institutional crisis.” But it’s not just Vladeck expressing concerns. The liberal justices on the Court are now regularly expressing criticism. In regards to the Court’s anti-COVID policies rulings, Justice Elana Kagen observed “Justices of this Court are not Scientists.” Kagen has stated that every day, the Court’s shadow docket behavior “becomes more unreasoned, inconsistent and impossible to defend.” She calls the shadow docket “another place for merits determinations – except made without full briefing and argument.” Even conservative Chief Justice John Roberts has voiced disapproval of recent shadow docket behavior.
So, how can this misuse of the shadow docket be reversed? Vladeck concludes by stressing that it will take intervention from Congress. Call me pessimistic, but my guess is that Republican members of Congress are unlikely to support action on this matter. And so it goes…
Reviewer Opinion: Interesting and important topic, but at times a bit of a chew to follow the legal arguments.
Reviewer Rating of Book: Thumb mostly up