More Transparency Urged for 'Shadow Docket'

             With the Supreme Court on recess and First Monday still six weeks away, there was no news from One First Street last week until the evacuation of the building after the Capitol Hill bomb scare on Thursday [Aug. 19]. The Supreme Court press corps was stirred into action late Friday night [Aug. 20], however, after new “shadow docket” filings in two long running disputes over the Trump administration’s “remain in Mexico” policy and the Biden administration’s “eviction moratorium.”

            The reporters still on watch that night quickly produced stories on the Biden administration’s effort to delay a federal district court’s order that it reinstitute Trump’s “remain in Mexico” policy for asylum applicants. The administration’s filing in Biden et al. v. Texas et al. (21A21), asked the Court to stay the order issued by a Trump-appointed judge in Texas even though a three-judge Fifth Circuit panel had rejected the government’s application for a stay just one day earlier.

            The reporters also had to turn out instant coverage of the latest plea by landlords seeking to block the eviction moratorium ordered by the Centers for Disease Control as an emergency pandemic measure. The Alabama Association of Realtors was asking the Court to lift a district court judge’s decision to stay his ruling against the moratorium pending the government’s appeal; a D.C. Circuit panel refused to lift the stay, prompting the realtors’ group to ask again at the Supreme Court in a filing called Alabama Ass’n of Realtors v. Dep’t of Health and Human Services (21A23).

            The so-called “shadow docket,” an obscure area of Supreme Court practice until six years ago, gained increased attention over the past four years as the Trump administration succeeded in using the procedures in a succession of contentious disputes to rescue the government from adverse rulings by lower federal courts. The administration succeeded, for example, in clearing the way for federal executions for the first time in seventeen years by persuading the justices to stay lower court decisions that had blocked the lethal injection protocol the government planned to use.

            Credit for first raising concerns about the “shadow docket” goes to William Baude, a law professor at the University of Chicago and former Supreme Court law clerk, who coined the phrase in an op-ed published in The New York Times on Feb. 3, 2015, under the headline “The Supreme Court’s Secret Decisions.” Baude illustrated his concern about the obscurity surrounding the procedures by citing what he depicted as inconsistent decisions in advance of the 2014 election in regard to voter ID laws enacted in two states: Wisconsin and Texas. Baude noted that the Court had blocked the Wisconsin law but had allowed Texas to implement a similar measure, without an explanation in either of the rulings.

            Stephen Vladeck, a law professor at the University of Texas in Austin, added to the concern over the past year by compiling the Trump administration’s unprecedented use of shadow docket procedures as a frequent litigation strategy after adverse rulings in lower federal courts. Vladeck’s list showed forty-one applications for emergency relief from the Court during Trump’s four-year presidency, compared to only eight such applications in the sixteen years of the Bush and Obama presidencies.

            With its fortified conservative majority, the Court rewarded the Trump administration by granting applications in full in twenty-four instances and in part in four others: for an overall success rate of 70 percent, according to Vladeck’s count. The administration’s success in shadow docket cases may have played a part in encouraging houses of worship to use the same procedure to bring “free exercise” challenges to the Court to try to nullify pandemic-related limits on attendance at worship services imposed by governors in several states. The Court’s divided decisions in a trio of

            The Court’s divided decisions in a trio of such cases during the 2020 term struck down the restrictions on the ground that they allowed larger crowds at commercial establishments than at worship services. Together, the three decisions appear to have established a new precedent to make it easier for religious organizations to challenge laws or regulations that have incidental effects on religious practices.

            Testifying to a House Judiciary subcommittee on Feb. 21, Vladeck criticized the increased use of shadow docket procedures compared to the more thorough consideration given to the Court’s so-called “merits docket” – with full briefing by both sides, oral arguments, written opinions, and a breakdown of the justices’ individual votes. Without those formal procedures, Vladeck explained to the lawmakers, “these rulings come both literally and figuratively in the shadows.”

.           Shadow docket cases begin with an application by the losing party in a lower court case asking the justices to intervene in advance of the normal appellate process to block the adverse decision from going into effect. The applications are submitted to the justice responsible for the circuit where the case originated, who can rule on the matter unilaterally or can refer the matter to the full Court for consideration.

Earlier this month, Justice Amy Comey Barrett acted on her own in rejecting a plea by Indiana University students to block the school’s vaccine mandate for students, faculty, and staff. Barrett held on to the application in Klaassen et al. v. Trustees, 21A15, for six days without asking for the school to reply and without referring the matter to the full Court before denying the application on Aug. 12 without any written explanation. The case illustrates to some extent Baude’s suggestion that the Court ordinarily can provide at least some explanation of the reason for granting or denying an application in order to provide some guidance to lawyers and lower court judges.

            The two most recent filings may come to a head early this week: Justice Alito granted the administration a temporary stay in the “stay in Mexico” case through Tuesday (Aug. 24) and asked Texas and the other states to reply to the government’s request that day. The eviction moratorium case went to Chief Justice Roberts, who supervises the D.C. Circuit and who asked for the administration to reply on Monday.