What incentive does the Supreme Court have to use the shadow docket?
September 3, 2021 10:52 AM Subscribe
I haven't seen any analysis on what reason the Supreme Court has for using the shadow docket so extensively lately. Why not decide the cases? The shadow docket makes complete sense to me for uncontested procedural matters and true middle of the night emergencies. But that's not what's happening here. Why? Who benefits from these unsigned decisions?
Please, please don't use this as a forum for general commenting on Supreme Court decisions.
I can understand why justices will sometimes refuse to take a case altogether because it's not "the right time" to get an outcome they want. Or because they think a different case would allow them to build a coalition with other justices for a full decision. But if you've (apparently) got the votes, why rely on an unsigned decision? Is it to prevent precedent from being set? Is it to avoid going on the record for something controversial? Reduce the court's workload? What is going on? Any type of analysis welcome.
Please, please don't use this as a forum for general commenting on Supreme Court decisions.
I can understand why justices will sometimes refuse to take a case altogether because it's not "the right time" to get an outcome they want. Or because they think a different case would allow them to build a coalition with other justices for a full decision. But if you've (apparently) got the votes, why rely on an unsigned decision? Is it to prevent precedent from being set? Is it to avoid going on the record for something controversial? Reduce the court's workload? What is going on? Any type of analysis welcome.
They're doing things they know are wrong and they don't want to have to commit to writing down a bunch of fiction about it. They were simply hired to do a job and they're getting it done.
posted by bleep at 11:19 AM on September 3, 2021 [19 favorites]
posted by bleep at 11:19 AM on September 3, 2021 [19 favorites]
I am not an expert but I pay attention to what the experts are saying about this. Here's a summary of my understanding based on that:
1) Everybody seems to agree that John Roberts cares a great deal about the public perception of the supreme court. What's more, they seem unanimous in the conclusion that he's very good at shaping that public perception. Shunting something onto the shadow docket is one way of managing public perception.
2) Shadow docket opinions can be unsigned. This diffuses responsibility, and thus blame, and thus reduces the friction of making questionable rulings.
3) Shadow docket opinions don't even necessarily require written explanation at all, further insulating individual judges from scrutiny.
4) The waters around this type of ruling are often deliberately muddied (I assume you're thinking of Texas SB8, though this is true about many shadow docket cases). Specifically, there are some loud voices saying that there's a difference between taking a bad action and failing to take a good one, for instance. Since what the supreme court actually did here is nothing, that creates an avenue for spinning away responsibility (again).
As I write these, I'm seeing that it mostly comes down to deflecting responsibility as a method of perception management. Some writers have been on the shadow docket case for years; now that the idea is getting some mainstream public scrutiny I'm guessing we'll see a shift in tactics soon.
posted by dbx at 11:34 AM on September 3, 2021 [4 favorites]
1) Everybody seems to agree that John Roberts cares a great deal about the public perception of the supreme court. What's more, they seem unanimous in the conclusion that he's very good at shaping that public perception. Shunting something onto the shadow docket is one way of managing public perception.
2) Shadow docket opinions can be unsigned. This diffuses responsibility, and thus blame, and thus reduces the friction of making questionable rulings.
3) Shadow docket opinions don't even necessarily require written explanation at all, further insulating individual judges from scrutiny.
4) The waters around this type of ruling are often deliberately muddied (I assume you're thinking of Texas SB8, though this is true about many shadow docket cases). Specifically, there are some loud voices saying that there's a difference between taking a bad action and failing to take a good one, for instance. Since what the supreme court actually did here is nothing, that creates an avenue for spinning away responsibility (again).
As I write these, I'm seeing that it mostly comes down to deflecting responsibility as a method of perception management. Some writers have been on the shadow docket case for years; now that the idea is getting some mainstream public scrutiny I'm guessing we'll see a shift in tactics soon.
posted by dbx at 11:34 AM on September 3, 2021 [4 favorites]
If a SCOTUS majority are ideologically aligned with the executive branch and a lower court rules against that branch, they can do the President a solid by halting the usual course and pausing the lower ruling from going into effect.
The acceleration of the shadow docket came under Trump, when the DoJ applied dozens of times to get unfavorable rulings stayed pending appeal. SCOTUS rewarded this tactic by granting the stays almost every time.
It's probable that a few of those were genuinely bad decisions, but this never used to happen- these sorts of stays were pretty rare. But if you are an ideologically motivated court, there's nothing technically preventing you from speeding up the process of ruling for the executive; why wait to overturn the ruling properly when you have already made up your mind? This use of the shadow docket was used mostly to protect the Trump administration from any lower court decisions that didn't go their way.
It can of course be used as a sword also. For example, a court might allow to take effect a law that doesn't exempt churches from covid restrictions. The litigants are appealing, but in the interim, the law is in effect. SCOTUS jumped in and turned the law off, because in their view it's such an abridgement of a fundamental right that it cannot be allowed to stand even temporarily.
Of course, they had no such qualms with SB8.
posted by BungaDunga at 11:59 AM on September 3, 2021
The acceleration of the shadow docket came under Trump, when the DoJ applied dozens of times to get unfavorable rulings stayed pending appeal. SCOTUS rewarded this tactic by granting the stays almost every time.
It's probable that a few of those were genuinely bad decisions, but this never used to happen- these sorts of stays were pretty rare. But if you are an ideologically motivated court, there's nothing technically preventing you from speeding up the process of ruling for the executive; why wait to overturn the ruling properly when you have already made up your mind? This use of the shadow docket was used mostly to protect the Trump administration from any lower court decisions that didn't go their way.
It can of course be used as a sword also. For example, a court might allow to take effect a law that doesn't exempt churches from covid restrictions. The litigants are appealing, but in the interim, the law is in effect. SCOTUS jumped in and turned the law off, because in their view it's such an abridgement of a fundamental right that it cannot be allowed to stand even temporarily.
Of course, they had no such qualms with SB8.
posted by BungaDunga at 11:59 AM on September 3, 2021
That is, suppose a court orders some executive policy halted. DoJ then appeals. DoJ also requests that SCOTUS reinstate the policy on an accelerated basis. The latter request is on the "shadow docket", and the court can grant it to protect the executive from even having its policies temporarily suspended pending appeal.
This is very good for the ideological project of "giving the executive all the power" and additionally "giving our ideological friends all the power when they are in control of the executive".
Strategically withholding stays is also useful for situations like SB8. If you're impatient to get the ideological project of banning abortion done and you don't want to wait to actually have it argued and formally overrule precedent- this takes months- you can just sit on your hands and refuse to enforce the existing precedent. This is both easier and faster, and you can take your time pretending to consider the merits of the case and formally overrule the precedent later.
posted by BungaDunga at 12:08 PM on September 3, 2021
This is very good for the ideological project of "giving the executive all the power" and additionally "giving our ideological friends all the power when they are in control of the executive".
Strategically withholding stays is also useful for situations like SB8. If you're impatient to get the ideological project of banning abortion done and you don't want to wait to actually have it argued and formally overrule precedent- this takes months- you can just sit on your hands and refuse to enforce the existing precedent. This is both easier and faster, and you can take your time pretending to consider the merits of the case and formally overrule the precedent later.
posted by BungaDunga at 12:08 PM on September 3, 2021
Two recent excellent articles giving context on the shadow docket: Economist: Many of the Supreme Court’s decisions are reached with no hearings or explanation and NYTimes: Rulings Without Explanations.
Both articles talk about various forces behind the increase in shadow docket decisions. More cases. More cases with national impact. A faster process. The NYT also lists a particularly cynical reason, "In the latest abortion case, there is no signed opinion for legal scholars to pick apart, and no single justice is personally associated with the virtual end of legal abortion in Texas".
The key takeaway is there really are more shadow docket decisions. And they're more important; the Supreme Court seems to have largely abandoned a previous understanding to only use it for cases that were non-controversial or not high stakes. The NYT also says this is specifically a form of right wing judicial activism on the part of the current Supreme Court.
posted by Nelson at 12:48 PM on September 3, 2021 [5 favorites]
Both articles talk about various forces behind the increase in shadow docket decisions. More cases. More cases with national impact. A faster process. The NYT also lists a particularly cynical reason, "In the latest abortion case, there is no signed opinion for legal scholars to pick apart, and no single justice is personally associated with the virtual end of legal abortion in Texas".
The key takeaway is there really are more shadow docket decisions. And they're more important; the Supreme Court seems to have largely abandoned a previous understanding to only use it for cases that were non-controversial or not high stakes. The NYT also says this is specifically a form of right wing judicial activism on the part of the current Supreme Court.
posted by Nelson at 12:48 PM on September 3, 2021 [5 favorites]
Oh, here's Steve Vladeck's latest on the issue. He's quite careful not to say that the court is using these rulings to advance a transparently political agenda under cover of unsigned opinions, but...
posted by BungaDunga at 12:56 PM on September 3, 2021
posted by BungaDunga at 12:56 PM on September 3, 2021
Adam Serwer had a very good piece on this the other day.
posted by Conrad Cornelius o'Donald o'Dell at 9:33 PM on September 3, 2021
posted by Conrad Cornelius o'Donald o'Dell at 9:33 PM on September 3, 2021
It is not too far-fetched to think that the Court's heightened receptiveness to petitions from the Trump Administration, compared with earlier administrations, emboldened Trump in his hope that it would swoop in at the last minute (without the bother of having to have filings, arguments, and rulings in lower Federal courts first) and hand him a win on his challenges to the results of the 2020 election.
posted by yclipse at 4:28 PM on September 4, 2021
posted by yclipse at 4:28 PM on September 4, 2021
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Deciding cases without the usual full process means they can address more cases, faster, with less disruption to the justices' lives (and presumably those of their support staff). I'm not saying that's good, but in some ways I can see the appeal (heh). The usual process takes a lot of time and effort, occurs on a fairly fixed schedule, and is slow.
posted by likedoomsday at 11:05 AM on September 3, 2021 [1 favorite]