Q&A

The Supreme Court Is Hiding Important Decisions From You

A new book argues the court is undermining its credibility by rendering so many unsigned and unexplained decisions on its so-called ‘shadow docket.’

By IAN WARD

05/19/2023 04:30 AM EDT

Ian Ward is a contributing writer for POLITICO Magazine.

As the Supreme Court begins to release its written opinions from its most recent term, much of the public’s attention is focused on high-profile cases on affirmative action, election law and environmental regulation. But according to Stephen Vladeck, a professor at the University of Texas Law School, this narrow focus on the most headline-grabbing decisions overlooks a more troubling change in the High Court’s behavior: The justices are conducting more and more of the court’s most important business out of the public eye, through a procedural mechanism known as “the shadow docket.”

Quantitatively speaking, cases arising from the shadow docket — which include everything apart from the court’s annual average of 60 to 70 signed decisions — have long made up a majority of the justices’ work. But as Vladeck documents in his new book, The Shadow Docket, published this week, the court’s use of the shadow docket changed dramatically during the Trump years, when the court’s conservative majority used a flurry of emergency orders — unsigned, unexplained and frequently released in the middle of the night — to greenlight some of the Trump administration’s most controversial policies. ... “What’s remarkable is that the court repeatedly acquiesced and acquiesced [to the Trump administration], and almost always without any explanation,” Vladeck said when I spoke with him. “And they did it in ways that marked a pretty sharp break from how the court would have handled those applications in the past.”

It wasn’t just the frequency of the court’s shadow docket decisions that changed during the Trump years; it was also the scope of those decisions. Whereas the justices have traditionally used emergency orders as temporary measures to pause a case until they can rule on its merits, the current court has increasingly used emergency orders to alter the basic contours of election law, immigration policy, religious liberty protections and abortion rights — all without an extended explanation or legal justification. To illustrate this shift, Vladeck points to the court’s emergency order in September 2021 that allowed Texas’s six-week abortion ban to take effect — a move that effectively undermined Roe v. Wade nine months before the court officially overturned it in Dobbs v. Jackson Women’s Health Organization.

“It really highlights a problem that’s endemic to how we talk about the court, which is that we fixate on the formality of the court’s decision and explanations and downplay the practical effect of its rulings, whether or not they come with those explanations,” Vladeck explained.

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