The Supreme Court and the "shadow docket" (2023)

The title sounds more like a thriller than a legal treatise.The Shadow Files: How the Supreme Court Used Secret Rulings to Accumulate Power and Undermine the Republic— Author Stephen Vladek, a professor of law at the University of Texas, admits that the term "secret conduct" is suggestive.

To make it understandable to non-lawyer stakeholders, Vladeck's book focuses on a part of court work that is considered rather boring until the age of six or seven. However, this is no longer true, and today emergency documents are known as background evidence, a term coined in 2015 by University of Chicago law professor William Ballard.

Judge Samuel Alitohate that wordAnd delivered an hour-long speech at Notre Dame in 2021, suggesting that journalists and politicians used it to misrepresent the court as "sneaky", "sinister" and "dangerous".

However, the deadline was preserved.

(Video) The Shadow Docket and How the Supreme Court Uses It

Prof Vladeck believes the courts are to blame.

"What prompted me to write this book is that shadow doctrine has become less boring in the past six years because the Supreme Court, and especially the conservative majority, have used unsigned and unexplained statutes to some degree . is truly unprecedented in the court's history," he told NPR.

What is the Book of Shadows?

Shadowing or urgency refers to how many issues today, sometimes very important ones, are resolved without full reports or oral arguments and without written submissions.

These cases are brought to court by countries, companies or individuals who lost their case in lower courts, often at an early stage, and the losing party is now asking the Supreme Court to block the lower court's order while the case proceeds. through the court appeal process. The court of first instance usually takes several months. The Supreme Court recently issued an emergency order blocking a lower court order that would have made it more difficult to obtain mifepristone, which is currently used for most abortions in the United States. As is typical in these receipt cases, the court did not issue a written opinion on the case, although Judge Alito, one of the two dissidents, angrily explained that he disagreed with the majority.

Until recently, these shadowy activities were fairly rare. Stats Talk, Stats was developed by Vladeck. During the 16 years of the Bush and Obama administrations, the federal government, as the most frequent party on the Supreme Court, made just eight emergency recourses to judges, an average of once every two years. Combined, the two governments got what they wanted in just four of eight cases, and in all but one of the cases the courts spoke with one voice, with no objections.

(Video) What is the Shadow Docket? #Shorts

But that has changed dramatically under the Trump administration, with the recent conservative restoration of a majority on the courts. In just four years, the Trump Justice Department has asked the courts for emergency assistance 41 times, and the courts have granted those requests in whole or in part in 28 cases.

In short, the Trump administration has not only actively sought to leverage emergency documents, often bypassing the appeals court entirely, but it has also done so through tactics.

"Dirty Secret"

For example, Vladek cited challenges to President Trump's controversial diversion of military funds to build a border wall. A federal district court judge reviewed the case and ruled that the misappropriation of funds was unconstitutional and barred the government from using the money for purposes other than those permitted by Congress. Within weeks of the Trump administration's urgent appeal to the Supreme Court to block the lower court's ruling, the justices reinstated the transfer of funds in a 5-4 vote, with no written majority and no dissenting opinions. As Prof Vladeck explained, these emergency rulings are temporary to allow the case to be heard in the lower court appeal process, which may then be reconsidered by the Supreme Court at a later date.

But "the dirty secret is that the future will never come," he said. "Until the border wall issue" or "various other challenges to Trump's policies come back to the Supreme Court, on the other side of the normal trial, with President Biden in office, the policies have been dropped, the cases have been dismissed.

He said the pattern, repeated over and over, allowed Trump to "enforce policies that lower courts ruled illegal as the Supreme Court passed unsigned and unexplained orders" that effectively said, "Go ahead, President Trump." .” We’ll deal with that later. "

(Video) New book 'Shadow Docket' explores Supreme Court's growing influence on American law

Vladek's point is not that the Supreme Court is necessarily wrong, but that its inexplicable ruling today is "cryptic and incoherent." He argued that the emerging model left the court in a "deeply unflattering state".

"The more you look at the record, the more it seems that the best explanation for when the courts step in and when they don't is partisan politics rather than neutral substantive legal principles," he argued.

There are no comments to comment on.

Vladeck referred to a 2021 speech by Judge Amy Coney Barrett, in which she assured the audience that the current court was "not made up of partisan hackers" and urged people to "read the opinions." But as Vladeck pointed out,
"What is remarkable about a secret document is that courts often issue shocking rulings without an opinion to read."

Historically, Vladek argues, the way the Supreme Court has conceived of its own legitimacy and moral authority has been in its ability to provide principled reasons for its decisions.

In serious cases involving abortion or the right to bear arms, "we may disagree with specific principles that a judge will spell out," he said, citing two examples. But at least we feel that these decisions are based on legal principles. "The Book of Shadows has none of that," he argued.

(Video) Supreme Court Shadow Docket

Vladeck agrees, and quite rightly, that in some cases courts have to use urgent notices to deal with emergencies: typically last-minute calls for stays or a series of Trump travel ban or mifepristone cases. He noted, however, that even conservative Chief Justice John Roberts has warned against the widespread use of impeachment.

In the redistricting case in Alabama, for example, Roberts, who did not support the Voting Rights Act, may end up on the state's side, writing that lower courts ruled correctly under current law. Therefore, it did not want to issue an emergency order to overturn the unanimous decision of the lower court. Instead, he joined three rival Supreme Court liberals. In that sense, Vladek said, Roberts was "the canary in the mine."

Vladeck noted that Congress is not powerless on such issues. During the Supreme Court's first 200 years, Congress played an active role in shaping and adjusting the court's record, including how the court handled urgent cases.

"I think the story is one of Congress gradually withdrawing control of the courts, and the courts gradually withdrawing from wanting control," he said.

Copyright 2023 NPR. To view more information, visit

(Video) Stephen Vladeck Explains How the Supreme Court Uses and Abuses the Shadow Docket


What is a shadow docket with reference to the Supreme Court? ›

Terminology. The term "shadow docket" was coined in 2015 by William Baude, who wrote: Outside of the merits cases, the Court issued a number of noteworthy rulings which merit more scrutiny than they have gotten. In important cases, it granted stays and injunctions that were both debatable and mysterious.

How cases reach the Supreme Court answer key? ›

Most cases reach the Supreme Court via writ of certiorari: a request that the Supreme Court order a lower court to send up a case for review. The Court receives about 8,000 of these requests a year. Four of the 9 justices must decide a case is “certworthy” for the Court to grant certiorari and hear the case.

What cases will the Supreme Court hear in 2023? ›

The justices will deliver rulings on race, immigration, and LGBTQ rights. The U.S. Supreme Court is back in action for 2023 and staring down a long list of blockbuster decisions due for release in the weeks ahead.

How many of the 9 justices have to wish to hear a case in order for the Supreme Court to issue an acceptance of a case? ›

The Supreme Court has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case. Five of the nine Justices must vote in order to grant a stay, e.g., a stay of execution in a death penalty case.

What does it mean to be on the Supreme Court docket? ›

The Supreme Court's docket system contains information about cases, both pending and decided, that have been filed at the Court. The docket provided here contains complete information regarding the status of cases filed since the beginning of the 2001 Term.

What is the purpose of the shadow docket? ›

The shadow, or emergency, docket, is the way many cases today, sometimes hugely consequential cases, are decided, without full briefing or oral argument, and without any written opinion.

Can the president overturn a Supreme Court decision? ›

When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court.

Who can overturn a Supreme Court decision? ›

Court can declare a law unconstitutional; allowing Congress to override Supreme Court decisions; imposing new judicial ethics rules for Justices; and expanding transparency through means such as allowing video recordings of Supreme Court proceedings.

What are the 3 ways cases reach the Supreme Court? ›

  • Original Jurisdiction.
  • Advancing through the Appellate Court.
  • Writ of Certiorari.
  • Appeals from State Supreme Courts.
Dec 30, 2022

What cases are still pending in the Supreme Court? ›

October Term 2022 cases
CaseDocket no.Oral argument
Jack Daniel's Properties, Inc. v. VIP Products LLC22-148March 22, 2023
Jones v. Hendrix21-857November 1, 2022
Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin22-227April 24, 2023
Lora v. United States22-49March 28, 2023
27 more rows

What is the 9 0 Supreme Court decision 2023? ›

Supreme Court's 9-0 Ruling Paves Way for Constitutional Challenges to Administrative Proceedings. The U.S. Supreme Court on April 14, 2023, issued a unanimous opinion holding that federal district courts can consider constitutional challenges to administrative proceedings before such agencies issue final rulings.

What is the most important court case in U.S. history? ›

Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court case to apply the principle of "judicial review" -- the power of federal courts to void acts of Congress in conflict with the Constitution.

What is the rule of 4? ›

The “rule of four” is the Supreme Court's practice of granting a petition for review only if there are at least four votes to do so. The rule is an unwritten internal one; it is not dictated by any law or the Constitution.

What happens when the Supreme Court refuses to hear a case? ›

If the Supreme Court Denies Cert, the Lower Court Ruling Will Stand. What happens if the Supreme Court decides not to hear your case? The short answer is that it means that the specific case in question is over. The trial court ruling or the last ruling from an appellate court will be allowed to stand.

How long does it take for the Supreme Court to make a decision? ›

When will the Supreme Court opinion issue, and what happens then? The court files its written opinion within 90 days of oral argument. The decision becomes final 30 days after filing.

Why is it called a docket? ›

The derivation and original sense are obscure, although it has been suggested that it derives from the verb "to dock", in the sense of cutting short (e.g. the tail of a dog or horse); a long document summarised has been docked, or docket using old spelling.

What is docket and why it is important? ›

A docket is defined by the Administrative Office of the U.S. Courts as a "log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings." Every case is assigned a unique docket number, which researchers can use to find information such as the names of the ...

What does cases on the docket mean? ›

: on a list of legal cases to be heard by a court. The judge had to postpone some of the cases on the docket. : on a list of things to be considered (by a group of people, such as a committee)

What does shadow mean in law? ›

The shadow of the law refers to settling cases or making plea bargains in a way that takes into account what would happen at trial. It has been argued that criminal trials resolve such a small percentage of criminal cases "that their shadows are faint and hard to discern."

What defines shadow court? ›

The Shadow Court is a secretive court of Unseelie Changeling opposed to the 600 years' rule of the Seelie monarchs. Many of them are ritualists and have many traditions and holidays, like Samhain, and want a return to a winter rule by the Unseelie and a summer rule by the Seelie.

What is the difference between the merits docket and the shadow docket? ›

Cases on the shadow docket, in contrast to those on the merits docket, typically do not receive extensive briefing or a hearing. The decisions are accompanied by little to no explanation and often lack clarity on which justices are in the majority or minority.

Does the US President have power over the Supreme Court? ›


decide how federal money will be spent. interpret laws. choose Cabinet members or Supreme Court Justices without Senate approval.

How many Supreme Court decisions have been overturned? ›

Of the more than 25,500 decisions handed down by the Supreme Court since its creation in 1789, it has only reversed course 146 times, less than one-half of one percent.

Has anyone been impeached from the Supreme Court? ›

He is the only U.S. Supreme Court justice to have been impeached. Judge Alexander Pope Humphrey recorded in the Virginia Law Register an account of the impeachment trial and acquittal of Chase.

Can a federal judge overrule the Supreme Court? ›

Federal courts may overrule a state supreme court decision only when there is a federal question which springs up a federal jurisdiction.

Who has the power to change the Supreme Court? ›

Article III, Section 1 of the Constitution gives Congress the authority to change the size of the Supreme Court. Congress has used that authority seven times before. To restore balance and integrity to a broken institution, Congress must expand the Supreme Court by four or more seats.

How can the president check the power of the Supreme Court? ›

The Executive branch has the ability to appoint Federal judges and issue pardons, which gives it influence over the actions of the Judicial branch.

Is it difficult for a case to reach the Supreme Court? ›

There are thousands of petitions every year. The Supreme Court will only agree to hear a fraction of those cases. If four of the nine justices vote to hear that case, then the case is heard.

What is the least common way for a case to reach the Supreme Court? ›

The least likely way in which a case might be heard by the Supreme Court is for it to be considered under the Court's "original jurisdiction." Original jurisdiction cases are heard directly by the Supreme Court without going through the appeals courts process.

Can the Supreme Court be forced to hear a case? ›

In almost all instances, the Supreme Court does not hear appeals as a matter of right; instead, parties must petition the Court for a writ of certiorari. It is the Court's custom and practice to “grant cert” if four of the nine Justices decide that they should hear the case.

What types of cases is the Supreme Court most likely to take? ›

Most common—roughly two-thirds of the total—are requests for review of decisions of federal appellate or district courts. The great majority of cases reach the Supreme Court through its granting of petitions for writs of certiorari, from the Latin certiorari volumnus, “we wish to be informed.”

What cases are coming up before the Supreme Court? ›

5 upcoming Supreme Court cases to watch
  • Timbs v. Indiana (Excessive fines) The issue: Whether the Eighth Amendment's exclusion of excessive fines applies to state and local governments. ...
  • Madison v. Alabama (Death penalty) ...
  • Apple Inc. v. ...
  • Nieves v. Bartlett (First Amendment) ...
  • Gamble v. United States (Criminal procedure)

Did the Supreme Court approve prayer in school? ›

Schempp. In Schempp, the Court ruled that some of the religious staples of American public schooling veered too far into controversial territory. It ruled against teachers leading students in prayer, and against students reading the Bible in class as part of a prayerful practice.

What is the shadow docket controversy? ›

Through the 1970s, when a controversial case emerged on the shadow docket, the individual justice assigned to that part of the country took oral argument and issued a signed order explaining his reasoning, usually without the involvement of the other justices.

What are the 3 types of cases that go before the Supreme Court? ›

The judge's decisions are called orders or rulings and the final outcome is called a judgment. There are three general classes of cases in California: criminal, civil, and juvenile.

Which two scenarios are most likely to be granted a writ of certiorari by the Supreme Court? ›

Which two scenarios are most likely to be granted a writ of certiorari by the Supreme Court? Correct Answers: One federal appeals court rules one way on a case, while another federal appeals court rules the other way; the losers in both cases appeal to the Supreme Court.

What factors influence the Supreme courts decision making process? ›

Scholars who study the decision making by Supreme Court Justices have identified a variety of factors that affect decisions, including attitudes, precedent, persuasive interactions among the Justices, and Justices' considerations of the audiences for their decisions.

What is the major questions doctrine? ›

The major questions doctrine is a principle of statutory interpretation in United States administrative law which states that courts will presume that Congress does not delegate to executive agencies issues of major political or economic significance.

Which criteria does the court use to decide whether to hear a case? ›

Granting Certiorari

The Justices use the "Rule of Four” to decide if they will take the case. If four of the nine Justices feel the case has value, they will issue a writ of certiorari. This is a legal order from the high court for the lower court to send the records of the case to them for review.

Can a Supreme Court justice be removed by the president? ›

Federal judges can only be removed through impeachment by the House of Representatives and conviction in the Senate. Judges and Justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate.

What are the two 2 types of cases that get heard by the Supreme Court? ›

The United States Supreme Court is a federal court, meaning in part that it can hear cases prosecuted by the U.S. government. (The Court also decides civil cases.) The Court can also hear just about any kind of state-court case, as long as it involves federal law, including the Constitution.

What happens if the Supreme Court refuses to hear a case? ›

If the Supreme Court Denies Cert, the Lower Court Ruling Will Stand. What happens if the Supreme Court decides not to hear your case? The short answer is that it means that the specific case in question is over. The trial court ruling or the last ruling from an appellate court will be allowed to stand.


1. The Supreme Court's Shadow Docket
(House Committee on the Judiciary)
2. Justice Alito's Response To SCOTUS Shadow Docket Criticism
3. The Dangers of the Supreme Court Shadow Docket
(Samantha Bee)
4. Steve Vladeck: The Supreme Court's Shadow Docket | The Bulwark Podcast
(The Bulwark)
5. What is the shadow docket?
6. Clearing Up Some Misconceptions About the Supreme Court’s Shadow Docket—and Its Critics
(Notre Dame Law School)
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