Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.
When thinking of cases in front of the Supreme Court, one might picture lawyers, arguments, deliberations and opinions being handed down. But each year, there are a set of cases that receive rulings but never see the light of a courtroom.
Civics 101 host Nick Capodice spoke with Julia about the shadow docket, and what these behind-the-scenes rulings mean.
Transcript
What is the shadow docket?
Well, I hesitate to define something by its negative, but I got to do it in this instance. The shadow docket is a term for actions the Supreme Court takes that are not what we usually think of when we think of SCOTUS's powers and responsibilities. What I'm talking about here [is that] the usual for the Supreme Court are called merits cases.
So each year there are about 9,000 cert petitions [petition for writ of certiorari] sent to the court. These are requests for the Supreme Court to hear a case. And the court picks, nowadays, about 60 of those. So there's arguments, there's deliberation and the court makes their ruling, with the majority writing the opinion and the minority sometimes writing a dissent.
However, the court can make decisions without that whole process just by saying the issue sent to the courts is an emergency and needs immediate resolution. These are shadow docket rulings. There's no arguments, no opinion, no legal explanation necessary. And often you don't know who voted which way.
What are some recent examples of the court doing it this way instead of the more traditional briefs, arguments, opinion process?
Well, there have been a lot lately. This year alone, there have been 25 emergency applications sent to the court by the Trump administration. These are when a lower court has ruled that the president's actions are unconstitutional. For example, recently in California, judges ruled that immigration agents could not arrest someone without reasonable suspicion based solely on a person's ethnicity or the language they spoke. Now, Trump sent an emergency request to the Supreme Court to overrule the decision of the California judges and lift that ban. And they did it. They did it in the shadow docket. Again, no arguments, no legal reasoning, just a printed memo saying this is okay now. Of those 25 requests, the court has ruled on 24 of them via the shadow docket, siding with the president 21 times.
So what's the problem with shadow docket decisions? Why the criticism of this path versus hearing a case on the merits?
Well, I think first off, it's an issue of transparency. Lately, justices like Sonia Sotomayor and Ketanji Brown Jackson have written dissents on these shadow docket rulings, explaining legally why they disagree with their decision. But we don't know which justices were for the emergency injunctions.
At the end of the day, to me, the biggest problem is the future. Since shadow docket decisions don't cite precedent or give legal reasoning, there is nothing for other courts — thousands of other courts, state, federal, circuit — there's nothing for them to use to decide cases that are going to come up in the years to come.
