Public Perception May Curb Supreme Court’s Shadow Docket

Mike Bedell is a student in the University of Chicago’s Evening Master’s Program.

Just before midnight on September 1, 2021, in a 5-4 decision, the U.S. Supreme Court issued an unsigned order declining to block S.B. 8, the Texas law that bans almost all abortions in the state. The order raised alarms among those who view the law as the most recent attack in Republicans’ campaign to overturn Roe v. Wade, the landmark decision that established the constitutional right to an abortion. But it wasn’t just the substance of the law that troubled people, it was also the way in which the Supreme Court issued its decision: the order in Whole Woman’s Health et al. v. Austin Reeve Jackson, Judge, et al. was part of the court’s “shadow docket.”

The term “shadow docket” refers to the Supreme Court’s non-merits docket and consists of the many emergency orders and summary decisions that the court must issue as part of its routine judicial duties. The merits docket, by contrast, is what is typically used when the court hands down its most important decisions. In contrast to the merits docket, shadow docket rulings are made without full briefing or oral arguments and often do not include any supporting reasoning. Additionally, they provide no indication of how the Justices vote. The shadow docket is often used to deny certiorari (a petition for the court to hear a case) or in cases where the court must act quickly to prevent an imminent harm, such as emergency appeals in death penalty cases. But recently, the shadow docket has been used more frequently in controversial cases that impact the rights of large numbers of people, and it appears that the court is using it in an inconsistent, and arguably partisan, way. For example, although the court refused to intervene to block the Texas abortion ban, it has been all too willing to step in to protect religious liberties by blocking New York’s occupancy-based restrictions on religious services during the COVID-19 pandemic and to limit the reach of executive power by striking down the CDC’s ban on residential evictions during the  . In other words, the court’s shadow docket rulings, and how the court utilizes the shadow docket, appear to favor Republican policies over Democratic ones. This raises serious questions about the public’s perception of the Supreme Court and the transparency of its decision-making. As part of an independent judiciary, the Supreme Court is supposed to be guided and constrained by the rule of law, not the principles of any political party or the personal or political beliefs of the Justices. When it is not, the public’s faith in the independence of the court and its decisions suffers.

In response to these concerns, the Senate Judiciary Committee recently held a hearing in which University of Texas law professor Stephen Vladeck, an expert on the federal courts, laid out a series of reforms to the shadow docket that Congress could implement. However, a recent study by Logan Strother suggests that the court is sometimes responsive to external constraints without formal restrictions. The article identifies a disagreement among scholars about the extent to which external factors constrain the Supreme Court. These external factors include, for example, the public’s perception of the court’s legitimacy, the court’s fear of sanctions such as impeachment or court packing, and its concern that its decisions will not be implemented by those who disagree with the decisions and are charged with enforcing them. One previous study concluded that the Supreme Court is constrained in salient cases (as measured by mentions of decisions in media sources after the decisions are announced by the court), especially in “lateral” decisions (those that must be implemented by non-court actors), because the court fears non-implementation by such actors (Strother 2019, 130). But another study found that the court is constrained in non-salient cases, because it doesn’t want to damage its institutional legitimacy, and that it reserves counter-majoritarian decisions for particularly important cases (Strother 2019, 130-31).

To resolve this conflict, Strother replicates these studies using a pre-decision measure of salience, which accounts for media mentions of cases prior to the Supreme Court’s decisions in those cases, rather than a post-decision measure. This allows him to test the effect of the salience of cases as they come before the court. He finds that public opinion constrains the Supreme Court in salient cases, especially in salient lateral cases, but not in non-salient cases. Of course, Strother’s study concerns external constraint on the Supreme Court’s decisions on its merits docket, not its use of its non-merits docket. But could the court be similarly constrained in its use of the shadow docket? After all, the term “shadow docket” has appeared in at least twenty pieces in the New York Times, Washington Post, Chicago Tribune, and Wall Street Journal between September 1, 2021, the date of the court’s decision in Whole Woman’s Health, and October 16, 2021. In contrast, it appeared in fewer than 15 pieces in these newspapers in the eight months prior to that, and fewer even than that during all of 2020. This increasing media attention surrounding the matter reflects greater public awareness of, and likely heightened concern over, the shifting use of the shadow docket by the Supreme Court. As a consequence, if Strother’s findings can be extended to Supreme Court procedure, it’s possible that the court may curb its use of the shadow docket in significant cases, or at least use it in a more consistent way, out of fear of erosion of public perception of its legitimacy and the transparency of its decision-making.

It is perhaps more important than ever that the court is in fact, and is seen as, legitimate, independent and consistent in its decision-making. Five of the nine justices who currently make up the Supreme Court were appointed by a president who lost the popular vote, which may be seen by some as fundamentally unfair. And the court’s perceived use of the shadow docket to achieve political ends may threaten to further erode public trust in it as an institution. It will be important to watch the Supreme Court’s shadow docket decision-making going forward. Will it continue to be, as Justice Kagan describes it in her dissent in Whole Woman’s Health, “unreasoned, inconsistent, and impossible to defend”? Or will the court curb its use of the shadow docket in particularly important and impactful cases, or at least use it in a more consistent way? Formal constraints are certainly an option in the event Congress decides that the shadow docket should be regulated. But recent research provides encouraging evidence that suggests that the court may be constrained by public opinion without the need for such laws.

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Roe v. Wade, 410 U.S. 113 (1973).

Logan Strother. 2019. “Case Salience and the Influence of External Constraints on the Supreme Court.” Journal of Law and Courts 7, no. 1 (Spring): 129-47. https://www.journals.uchicago.edu/doi/abs/10.1086/701274