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SCOTUS ‘Shadow Docket’ Secretly Pushes Agendas, Issues Major Rulings Without Argument or Public Knowledge

 by Dale Chappell

For the first time since 1862, the U.S. Supreme Court has decided a record low number of regular-docket cases – just 52. But that doesn’t mean the highest court in the land wasn’t busy. In fact, it was busier than ever, handing down decisions under the cover of night (sometimes literally) and without any public knowledge or input.

It’s what University of Chicago law professor Will Baud calls the Court’s “shadow docket,” and these aren’t cases left over from an earlier term or from the Court’s normal docket. Instead, these are cases where the Court barely gets any briefing from the parties (and usually the government is a party) and never hears oral argument. Often the decisions are only a sentence long, but their impact is great.

It’s true that the Court decides thousands of cases outside it’s normal “merits docket,” i.e., the docket that the public knows about, and they’re often unimportant decisions. But some cases are groundbreaking. Consider this fact. During the weeks between the beginning of July and the first week of August, reports that the Court handed down the following big decisions without any fanfare:

• It paved the way for the first federal executions in 17 years after lower courts had repeatedly stopped them;

• It permitted President Trump to use military funds to complete his controversial border wall, “even though every lower court to consider the issue has ruled that such repurposing of funds is unlawful”;

• It pushed back the resolution of a dispute between the House of Representatives and the Department of Justice over the Mueller report in a way that ensures the DOJ will win;

• It refused to stop a Florida law that requires felons to pay all outstanding fines and fees before they can vote, effectively endorsing a “pay to vote” law in Florida which a lower court had called flagrantly unconstitutional; and

• It stopped a district court order that required an Orange County, California, jail to take measures its own policies already mandated to protect prisoners from Covid-19.

Even more disturbing is that most of the orders were “split decisions,” the justices voting 5 to 4. Usually, the merits docket produces the most split decisions, but for the first time ever, the Court’s shadow docket will create more split decisions.

One factor that has crowded the Court’s shadow docket is that Trump, in his first three and a half years as president, has requested 34 stays of lower court orders adverse to him, and the Court has granted 22 of those. Compare that to only four stays over the 16 years of presidents Bush and Obama, combined.

While the Supreme Court says it’s a “court of review, not of first view,” its shadow docket says otherwise. This puts the justices in a position to decide critical legal questions without any argument and in secret. If the Court itself won’t start bringing these shadow docket cases into the open, Congress should exercise its authority and change how the Court handles its caseload. 



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