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Supreme Court's Alabama travesty and its worn-out 'shadow docket' defense

The more SCOTUS justices hand down major decisions affecting the rights of millions of people without explanation, the more they wear out the legitimacy of the institution itself.

Shortly after 5 p.m. on Monday, the Supreme Court put back into effect Alabama’s proposed district maps for the 2022 congressional election cycle — even though two district courts had thrown them out on the grounds that they diluted Black votes in violation of the Voting Rights Act. The 5-4 ruling came with no majority opinion. Rather, the court issued unsigned and unexplained “stays” of the district court decisions, while agreeing to hear Alabama’s appeal of those rulings on their merits during its next term (which starts in October).

The 5-4 ruling came with no majority opinion. Rather, the court issued unsigned and unexplained “stays” of the district court decisions.

The four dissenters — Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — all agreed that the court should take up the merits of Alabama’s appeals. But they vehemently disagreed with the majority’s decision that in the interregnum, the unlawful maps should go immediately go back into effect by dint of an unexplained and unsigned emergency order. More than just a one-off, as Kagan wrote for herself, Breyer and Sotomayor, “Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument.” Justice Brett Kavanaugh responded in a short concurring opinion, joined by Justice Samuel Alito, arguing that Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket’ is ... off target.”

Kavanaugh is right that this rhetoric is “catchy,” but as the decision in which he was concurring itself underscores, it’s the opposite of “worn out.” Monday’s decision is just the latest in a growing line of unexplained Supreme Court rulings that, as Kagan put it, “does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority.”

The ”shadow docket,” a term coined in 2015 by University of Chicago law professor Will Baude, is a catch-all phrase that encompasses all of the procedural orders (as opposed to substantive opinions) that the Supreme Court issues — from the mundane (granting a party more time to file a brief) to the macabre (clearing the way for an execution).

Baude used the term not to suggest that the existence of this large and neglected body of unsigned, unexplained orders itself is sinister (all courts issue orders to control their dockets, including which cases to hear, when and how), but to reflect its obscurity. Most of these orders come with no explanation whatsoever (and no vote count); they can be handed down at any time of day; and, because the rare explanations are usually focused on technical questions of legal procedure, they’re substantively (if not physically) inaccessible to the public.

Of course, the existence of unsigned Supreme Court orders long predates Baude’s terminological contribution and has not historically been a topic of much interest — even to Supreme Court scholars. But the last few years have seen dramatic shifts both in how the court uses these unsigned orders, and how often it is doing so.

During the Trump administration, for instance, the justices routinely used shadow docket orders to allow controversial policies that lower courts had blocked to go back into effect while those rulings were appealed. Virtually none of those policies were ever actually upheld by the Supreme Court. Since the start of the pandemic, the court has used shadow docket orders to block gathering restrictions in a number of blue states based on a novel understanding of the religious liberty protected by the First Amendment.

Just last month, the court used a shadow docket order to throw out the Occupational Safety and Health Administration’s vaccinate-or-test rule for large employers. And the same court sat on its hands last September, allowing Texas’s ban on virtually all abortions after the sixth week of pregnancy to go into effect rather than blocking it, pending appeal. As Kagan wrote in dissenting from that ruling, with each of these developments, the court’s “shadow-docket decisionmaking” has become “more unreasoned, inconsistent, and impossible to defend.”

All of this would be bad enough if, like the far more rare shadow docket orders of yesteryear, these rulings were understood to be temporary, and not to create precedents that lower courts are bound to follow. But the other innovation in recent years has been the court’s treatment of even unsigned and unexplained orders as having precedential value — and its criticism of lower courts for refusing to read between the lines.

All of this would be bad enough if, like the far more rare shadow docket orders of yesteryear, these rulings were understood to be temporary.

Monday’s reading is another good example. Not only does the decision guarantee that Alabama will use its (unlawful) maps to vote in the 2022 congressional elections (at the expense of the rights of Black voters in Alabama); the fact that the court issued a pair of stays based upon a novel legal theory months before a primary election will surely be used when Alabama and other states try to freeze the effects of adverse trial-court rulings in the future. This even though the justices have long insisted that “the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.” It is, of course, impossible to assess the “principled character” of rulings that have no rationale. All that’s left to do is measure them based upon who won, and who lost.

As the court’s use (and abuse) of the shadow docket has become more frequent, so too have the criticisms. A number of legal journalists, led by The Atlantic’s Adam Serwer, have gone to great lengths to explain to lay audiences why these procedural shortcuts matter. I’ve tried, as well — through public testimony, op-eds, law review articles, tweets and even a book due out next year. Perhaps we’re the ones to whom Kavanaugh is referring to when he complains about the “worn-out rhetoric” of the shadow docket. But the more the court hands down major decisions affecting the rights of millions of people without explaining itself, the more it wears out the legitimacy of the institution itself.