A majority of federal judges who spoke with The New York Times recently – many of them appointed by Republican presidents – are sounding the alarm on the Supreme Court’s increased use of its emergency docket, also known as a “shadow docket,” a process by which rulings are made unsigned, and without written opinions.
“I can’t think of words to capture the significance that federal judges themselves have to speak out, because the Supreme Court has given them no choice but to speak out,” said former federal judge J. Michael Luttig, speaking with The New York Times in a report published Saturday.
The Times spoke with more than five dozen active federal judges to ask them their thoughts on the Supreme Court’s increased use of the shadow docket, which since President Donald Trump took office for his second term in January has been used 14 times to rule on decisions.
Of the 65 federal judges The Times spoke with, 47 indicated that the Supreme Court had made inappropriate use of the shadow docket since Trump returned to office; six were neutral, and 12 – all nominated by Republican presidents – deemed the Court’s use of the shadow docket appropriate.
Speaking with the outlet anonymously, some words the judges used to describe the Supreme Court’s use of the shadow docket were “incredibly demoralizing and troubling,” “a slap in the face to the district courts,” and “overly blunt.” One judge described the Supreme Court’s relationship with district courts as “a war zone,” and another said the district courts were undergoing a “judicial crisis.”
“You don’t want too many snap judgments and emergency orders creating a public impression of either secretiveness or arbitrariness,” said Judge J. Harvie Wilkinson III, who presides over the U.S. Court of Appeals for the Fourth Circuit, a Reagan nominee, speaking with The Times.
The Supreme Court has sided with Trump in 21 of 23 cases testing his presidential power during his second term, 14 of which were decided using the shadow docket.