The “Shadow Docket” Brought Into Light

With its recent ruling on states’ enforcement of the Environmental Protection Agency’s Clean Water Act, the Supreme Court has once again decided an impactful case on what critics name the “shadow docket.” The “shadow docket” refers to the Court’s decisions on emergency applications. Importantly, the Court is meant to decide these cases on procedure rather than merit: the Justices do not have to explain their decisions, and they do not have to sign their opinions. This situation leads some to conclude that emergency decisions by the Court are rushed and far less transparent than typical Court decisions. In recent years, the Court’s greater use of emergency docket orders to decide impactful issues constitutes a broad expansion of power by the Court, calling into question its apolitical standing.

Within the last decade, the Court began to greatly expand its use of emergency docket cases. The Court granted 20 applications for emergency relief in its 2021 term, considering these cases as part of its “shadow docket.” In contrast, the Court only granted around five to six emergency applications during the first 10 years of Chief Justice John Roberts’ tenure. Some argue that the Court was forced to increase emergency applications during the COVID-19 pandemic, as the government had to quickly respond to the pandemic. This response often occurred in the form of unprecedented executive action. However, the Court has recently granted emergency applications for cases completely unrelated to the pandemic. For example, a Court emergency order under the Trump administration allowed former President Donald Trump to spend money not authorized by Congress to construct a border wall. The Court has recently begun to allow emergency applications at a higher rate than previous years, and it is not just due to the COVID-19 pandemic. 

Importantly, the Court has begun to grant emergency applications for more polarizing and less warranted cases. Some recent cases decided by an emergency application to the Court include a 2021 Texas law that banned abortion in all cases after six weeks, a case impacting voting rules for certain states before the 2020 election, and Obama’s 2016 initiative to limit carbon emissions from power plants. While emergency applications had previously been used for smaller, less controversial issues, recent decisions from the shadow docket clearly have broad ramifications.

Dissent over recent emergency application cases also prove their controversial nature. While only one of the eight emergency relief applications filed during the Bush and Obama administrations resulted in a public dissent by Justices, 27 out of the 36 heard during the Trump administration resulted in dissenting opinions. In the Court’s most recent use of an emergency hearing, the dissent claimed that the Court lowered its standard for allowing an emergency application. In her dissent on the recent EPA case, Justice Elena Kagan wrote that the parties backing the emergency application had not proven that a delay in the Court’s hearing the case would result in “irreparable harm,” the standard usually used in emergency hearings. Kagan argues that the Court used the emergency docket for a case that was not an emergency, resulting in the Court attempting a merits determination of the case without the traditional briefing and oral arguments. This evidence all demonstrates that the Court has begun using the emergency docket to consider hotly contested cases, many of which do not warrant the use of the emergency docket.

The Court’s expansion of the emergency docket and decisions made in these cases harm the Court’s apolitical standing. Critics of the Court have claimed that most of the decisions made about emergency docket cases have served conservative ideologies, arguing that this docket is a way for the conservative majority of the Court to support their ideological goals without the traditional justification required in a Court case. While the Trump administration won many of its cases involving emergency applications, the Biden administration is seemingly losing many of these cases. It is possible that the Court has been deciding these cases solely on procedure and is not advancing any political ends. However, the Court’s use of the “shadow docket” has still thrown its apolitical standing into question. Indeed, Justice Alito recently argued against critics of the emergency docket by saying that they were damaging the Court’s independent image. No matter the motivations of the Court, its amplified use of the emergency docket has clearly thrown its independent standing into question.

While the emergency docket was traditionally used to decide a few uncontroversial cases, the Court has used the docket in recent years to make a wide array of decisions about large, controversial issues. The Court’s use of the docket throws its apolitical standing into question, and has caused controversy about the opacity of the process and reasoning for the Court’s decisions. The emergency docket may also have ramifications on lower courts. While lower courts should try to follow the precedent set by the Supreme Court in these cases, they may have trouble doing so with the lack of opinions and rationale for the Supreme Court’s emergency decisions. Overall, the emergency docket raises important questions surrounding the power of the Supreme Court and motivations for its decisions.