For a case to appear before the Supreme Court, it must land on one of two lists, or dockets: the merits docket or the emergency docket, also known as the “shadow docket.” Each docket contains a set of cases for which the justices can issue rulings. Each docket has its own process for reaching those decisions.
The shadow docket process is a faster route to a decision. Part of its purpose is enabling the high court to quickly resolve administrative-type requests from lower courts, such as extensions of time to file petitions for writs of certiorari (Parties unsatisfied with how a lower court has ruled on their case might ask the Supreme Court to grant a writ of certiorari, which is a request that the Supreme Court officially hear their case).
But it is also less transparent, and recent shadow docket cases reflect a notable shift in the nature of topics appearing on that docket since 2017. They have involved border wall disputes, COVID-19 restrictions, abortion laws, and federal executions.
This shift has also caused confusion for lower courts, which follow the precedent set by the Supreme Court, because unlike the merits docket, the shadow docket process does not require written or dissenting opinions.
The Supreme Court is asked to review more than 7,000 cases each year and accepts 100 to 150 of them. Cases on the Supreme Court’s merits docket entail a scheduled and public hearing, a review of legal briefs, and oral arguments. After what is often a months-long process, the court provides its opinion and dissenting arguments in writing. This merits docket route is how the Supreme Court processes and delivers big decisions like Brown v. Board of Education or the recent Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
Alternatively, the shadow docket functions as an accelerated route for the Supreme Court to reach decisions and has been used mostly for administrative decisions.
“These cases are brought to the court by a state, or a company, or a person who has lost in the lower courts, often at an early stage, and that loser is now asking the Supreme Court to block the lower court order while the case proceeds through the lower court appeals process, which typically takes many months,” said legal scholar Stephen Vladeck in a testimony at a 2021 hearing before the Senate Committee on the Judiciary.
The shadow docket also allows the court to issue opinions without the level of transparency demanded by the merits docket process. Shadow docket case opinions, court orders, and changes in stays and injunctions have been issued in the middle of the night; they’ve been issued without disclosing which justices weighed in; and they’ve been issued without a written reasoning of the ruling. Each of these elements are departures from the Supreme Court’s merits docket proceedings.
The extended, transparent, and more rigorous process required of cases on the merits docket serves in part to let the public in on the reasoning behind a ruling and to strengthen public trust in the judicial system.
Further, it sets a precedent for lower courts to follow in their proceedings. When shadow docket rulings are issued without explanation, lower courts have less clarity on how they should proceed in similar cases.
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