I’ve not known until now. Lyle Denniston, who has been covering SCOTUS for nearly 60 years, explains:
Among the circle of people outside the Supreme Court but closest to it – the lawyers who practice there and the professors who study it – there is much talk and a lot of criticism these days of the problem of what they call the “shadow docket.” That is the Court’s choice, increasing in frequency and in legal consequences, of deciding important controversies without deep study, and without full explanation and sometimes none at all.
Unlike regular rulings, the kind that emerge after thorough vetting and prolonged deliberations, the pronouncements the Court is making more often on that docket are the products of a quickie, once-over-lightly examination that leaves lower courts, attorneys and the American public guessing about what they mean.
Sometimes, of course, the Court is required to act quickly, perhaps in emergencies, but those occasions ought to be rare, and – even when they happen – ought to be clear as to how the Court acted and why. The opaque process of the “shadow docket,” however, is a phenomenon that the Court as a whole does not concede is a problem, even though individual Justices have at times joined in the criticism. There seems to be little prospect now of a change.
So is this a deliberate choice by Chief Justice Roberts as a way to escape scrutiny by Court watchers? Or just a case of being overwhelmed and trying to cover more ground with less effort?
This was particularly disturbing, as it implies who is filing affects the outcome of deliberations, such as they are:
When the Trump Administration came into office, taking bold new legal initiatives, many of which ran into roadblocks in lower courts, government lawyers discovered the value of the “shadow docket.” They soon found that an increasingly conservative majority on the Supreme Court was sympathetic to putting those lower court orders on hold. That meant, of course, that a contested policy could go into effect, with at least implied support from the highest tribunal. That administration far exceeded what any other administration had done with these maneuvers, making routine use of what previously had been unusual.
That Trump Administration lawyers took advantage of the conservative majority’s temperament to overcome lower court rulings, while Biden Administration lawyers probably cannot, and might not even try, smacks of favoritism deeply unworthy of the Court.
