The Supreme Court’s 'shadow docket' is a 'symptom of a larger disease': law professor

In recent years, the U.S. Supreme Court has made extensive use of what is known as "the shadow docket" — that is, unsigned decisions often released in the middle of the night. The Brennan Center for Justice, in 2022, outlined the main differences between the shadow docket and the "merits docket," noting that cases decided on the shadow docket "typically do not receive extensive briefing or a hearing."

University of Texas law professor Stephen Vladeck, a vehement critic of the Roberts Court's use of the shadow docket, has devoted an entire book to the subject: "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic." And he offered some reasons why he finds the Court's shadow docket activity so troubling during an interview with The Guardian.

Vladeck argued, "The rise of the shadow docket reflects a power grab by a Court that has, for better or worse, been insulated from any kind of legislative response…. Here we have the Court not just using emergency applications to change substantive legal principles, but doing so even as they are considering requests to make the same changes through merits decisions."

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The Roberts Court hasn't always been so quick to use the shadow docket to this degree. Chief Justice John Roberts was appointed by President George W. Bush in 2005, and according to Vladeck, there was an uptick in shadow docket cases after Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg in 2020.

Barrett's appointment by President Donald Trump was a game-changer, giving Republicans a 6-3 supermajority on the High Court — whose reputation has suffered considerably.

Vladeck told The Guardian, "The shadow docket is a symptom of a larger disease. The disease is how unchecked and unaccountable the Court is today, compared to any of its predecessors."

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The Guardian's interview with Stephen Vladeck continues here.