The Shadow Docket

The Shadow Docket Plot Summary

Introduction

In the predawn hours of July 14, 2020, the United States government executed Daniel Lewis Lee, its first federal prisoner in seventeen years. Just hours earlier, Lee had secured a last-minute stay from a lower court judge concerned about the lethal injection protocol. But at 2:10 a.m., the Supreme Court issued a brief, unsigned order allowing the execution to proceed. By sunrise, Lee was dead. This momentous decision—literally a matter of life and death—came not through months of careful deliberation and public argument, but through an obscure procedural mechanism known as the "shadow docket." Most Americans imagine the Supreme Court as an institution that issues carefully reasoned opinions after extensive briefing and public oral arguments. Yet increasingly, the Court shapes American life through thousands of orders issued with minimal explanation and public scrutiny. Through these shadow rulings, the justices determine crucial questions about voting rights, immigration policy, religious freedom during a pandemic, and access to abortion—often without the accountability that comes with fully reasoned opinions. Understanding this shadow system reveals how judicial power actually operates in American democracy, and why the Court's legitimacy faces unprecedented challenges in an era of deepening polarization.

Chapter 1: The Rise of Certiorari: Taft's Reform and Court Control (1925-1988)

The shadow docket's origins trace back to a fundamental transformation in the Supreme Court's role that began nearly a century ago. In 1925, Chief Justice William Howard Taft—the only person to serve as both president and chief justice—orchestrated passage of the "Judges' Bill," which dramatically expanded the Court's discretion to choose which cases it would hear. Before this reform, the Court was obligated to decide nearly every case that came before it, resulting in an overwhelming docket of routine disputes. Taft envisioned a different role for the Court—not as a tribunal of last resort for individual litigants, but as a constitutional court that would selectively address only the most important legal questions facing the nation. The Judges' Bill introduced the writ of certiorari as the primary vehicle for Supreme Court review. This Latin phrase, meaning "to be more fully informed," gave the justices the power to handpick their cases. Taft sold this reform to Congress as a mere housekeeping measure to eliminate frivolous appeals. In practice, it fundamentally altered the Court's institutional role. As Taft himself privately described it, the reform gave the Court "absolute and arbitrary discretion" over its docket. By 1930, just five years after the bill's passage, 85% of the Court's cases were subject to this discretionary review, up from 60% before the reform. The rise of certiorari coincided with the Court's increasing involvement in constitutional questions. With more control over which cases to hear, the justices could strategically select disputes that allowed them to shape American law in profound ways. This discretion also gave the Court the power to avoid politically contentious issues when it wished. During the Vietnam War, for instance, the Court repeatedly denied review of cases challenging the war's legality, effectively allowing the conflict to continue without judicial scrutiny. Justice William O. Douglas bitterly criticized his colleagues for this avoidance, but the majority preferred to stay out of the political fray. Congress continued to expand the Court's discretion over the decades, culminating in the Supreme Court Case Selections Act of 1988, which made virtually all of the Court's jurisdiction discretionary. The impact was immediate and dramatic—the number of cases the Court decided on the merits plummeted from over 150 per term to fewer than 90. Today, the Court decides fewer than 70 cases with signed opinions each term, while considering over 7,000 petitions for review. This means that for every case the Court decides with a full opinion, it summarily rejects about 100 others with no explanation beyond "the petition for a writ of certiorari is denied." The rise of certiorari represents a profound shift in judicial power that most Americans never notice. Through its control of the docket, the Court can shape the law as much by what it declines to decide as by what it decides. This discretion allows the justices to strategically advance particular legal theories over time, taking up cases that incrementally move the law in their preferred direction. As legal scholar Edward Hartnett observed, "the Supreme Court's power to set its agenda may be more important than what the Court decides on the merits." This transformation laid the groundwork for the modern shadow docket, where procedural decisions increasingly drive substantive outcomes.

Chapter 2: Deciding Without Deciding: How Procedure Shapes Substance

In June 2015, the Supreme Court's landmark Obergefell v. Hodges decision legalized same-sex marriage nationwide. Yet what few Americans realize is that by the time this celebrated ruling was announced, same-sex marriage was already legal in thirty-seven states—and the Court's shadow docket was directly responsible for nearly half of that total. This remarkable story illustrates how the Court can transform American life through procedural maneuvers that attract little public attention. The path to marriage equality reveals the immense power of certiorari denials—the Court's refusal to hear cases. After the Court struck down part of the Defense of Marriage Act in 2013, lower federal courts began invalidating state bans on same-sex marriage. When these states appealed, the Supreme Court simply declined to hear the cases. On October 6, 2014, in a single order without explanation, the Court denied review in seven marriage cases from five states. This seemingly technical action had immediate consequences—it allowed lower court rulings striking down marriage bans to take effect, instantly legalizing same-sex marriage in those states and creating binding precedent that would soon topple bans in six more states. The Court's denial of review was not a neutral act. At least four justices must vote to grant certiorari, and we know from later events that at least one justice who opposed same-sex marriage (likely Chief Justice Roberts) strategically voted to deny review. This "defensive denial" reflected a calculation that the Court would likely rule in favor of marriage equality, so it was better to allow lower courts to establish the right gradually rather than risk a nationwide precedent. Through these shadow docket maneuvers, the Court effectively legalized same-sex marriage in eighteen states before Obergefell was even argued. The marriage cases demonstrate how the certiorari process shapes American law through strategic behavior by all participants. Justices engage in "defensive denials" to avoid outcomes they oppose. They provide "courtesy fifth" votes to stay lower court rulings when four colleagues want to grant review. Lower courts sometimes deliberately create "circuit splits" to force Supreme Court intervention. Lawyers time their filings strategically and craft questions presented to attract the justices' interest. All of this happens behind closed doors, with minimal transparency or public understanding. Beyond certiorari denials, the Court uses other shadow docket tools to shape the law. "GVR" orders (grant, vacate, and remand) allow the Court to wipe away lower court decisions without full review. "Summary reversals" overturn lower court rulings without briefing or argument. These actions can have enormous real-world impacts despite their technical nature. In 2004, for example, a cryptic two-line GVR order effectively centralized all Guantánamo detainee litigation in Washington, DC, fundamentally altering the course of post-9/11 habeas corpus jurisprudence. The shadow docket thus reveals a Court that exercises power through procedural mechanisms that most Americans never see or understand. These decisions may appear technical, but they reflect the justices' substantive values and can determine the rights of millions. As the marriage equality saga demonstrates, the Court can transform American life as much through what it declines to decide as through its celebrated landmark rulings.

Chapter 3: The Machinery of Death: Capital Punishment and Emergency Relief

The modern shadow docket emerged from a crisis in capital punishment cases that began in the 1970s. After the Supreme Court temporarily halted executions nationwide in 1972 in Furman v. Georgia, states quickly rewrote their death penalty laws. When the Court allowed executions to resume in 1976, it created a complex web of constitutional requirements for capital cases. This judicial supervision of the death penalty produced an explosion of last-minute emergency litigation that fundamentally changed how the Court handles urgent appeals. Before the 1980s, emergency applications were rare and typically handled by individual justices acting alone. Justice William O. Douglas famously heard arguments in his chambers in 1973 about whether to halt the bombing of Cambodia, and Justice Thurgood Marshall personally considered whether to stay executions. These justices would often write detailed opinions explaining their reasoning, even when acting individually. But as states began scheduling executions at an accelerating pace in the early 1980s, the Court faced an unprecedented flood of emergency applications—eighty-three requests for stays of execution in the 1983-1984 term alone. The Court responded by fundamentally changing its procedures. Instead of individual justices handling emergency applications, the full Court began deciding them collectively. The Court stopped formally adjourning for summer recess, ensuring it could act on emergency matters year-round. Most significantly, the justices largely abandoned the practice of providing written explanations for their emergency orders. As legal journalist Linda Greenhouse documented, the Court designated a special "death clerk" whose job was to track every scheduled execution nationwide and coordinate the justices' responses to last-minute appeals. These procedural changes had profound consequences. In 1985, the Court established the "courtesy fifth" practice, where at least one justice who opposed hearing a death penalty appeal on the merits would nevertheless vote to stay an execution if four colleagues wanted to grant review. This compromise preserved the "rule of four" for certiorari while preventing executions from mooting appeals the Court had agreed to hear. But it also tied stays of execution not to the strength of the prisoner's legal claims but to the Court's discretionary decision to grant review—a much higher bar. The Court's approach to capital cases grew increasingly divisive in the 1990s and 2000s. In 2019, the conservative majority signaled a dramatic shift in Bucklew v. Precythe, suggesting that "last-minute stays should be the extreme exception, not the norm," regardless of the merits of the prisoner's claims. This new presumption against emergency relief in death penalty cases became explicit in 2020, when the Trump administration resumed federal executions after a seventeen-year hiatus. In a series of late-night, unsigned orders, the Court cleared the way for thirteen federal executions in six months, repeatedly overturning lower court stays with minimal or no explanation. The final federal execution of the Trump era, that of Dustin Higgs on January 16, 2021, showcased the shadow docket at its most extreme. To overcome legal obstacles to Higgs's execution, the Court took the unprecedented step of granting certiorari "before judgment"—bypassing the court of appeals entirely—only to issue a summary ruling with no briefing or argument. Justice Sotomayor's dissent captured the transformation that had occurred: "This is not justice. After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not."

Chapter 4: The Trump Era: Executive Power and the Shadow Docket

The shadow docket underwent a dramatic transformation during the Trump administration, as the Court repeatedly intervened to allow controversial executive policies to take effect despite lower court injunctions. This shift began with President Trump's travel ban, issued just one week after his inauguration in January 2017. The ban, which barred entry to the United States from seven predominantly Muslim countries, was immediately blocked by multiple federal judges. But rather than wait for these cases to work their way through the normal appeals process, the Trump administration aggressively sought emergency relief directly from the Supreme Court. This strategy represented a radical departure from past practice. From 2001 to 2017, spanning the Bush and Obama administrations, the solicitor general had sought emergency relief from the Supreme Court only eight times—an average of once every two years. Under Trump, the government filed forty-one such requests in just four years. Even more remarkably, the Court granted at least partial relief in twenty-eight of the thirty-six applications that received an up-or-down decision. These orders allowed controversial policies to take effect even though lower courts had found them likely illegal, and even though the Supreme Court itself would never ultimately uphold many of them on the merits. The solicitor general's office, traditionally known as the "Tenth Justice" for its special relationship with the Court, abandoned its historical restraint during this period. Solicitors General Noel Francisco and Jeffrey Wall advanced novel theories justifying emergency relief, arguing that any injunction against a government policy caused "irreparable harm" simply by preventing the executive branch from implementing its agenda. The Court largely accepted this reasoning, granting stays of lower court injunctions against Trump administration policies on asylum, the border wall, the transgender military ban, and public benefits for immigrants, among others. What made these interventions particularly troubling was their one-sided nature. After Justice Barrett replaced Justice Ginsburg in October 2020, twenty-five of the twenty-six grants of emergency relief to the Trump administration came with no explanation from the Court. The justices simply issued one-sentence orders putting blocked policies back into effect, without articulating any principles to guide future courts or litigants. And when President Biden took office in January 2021, the Court abruptly changed course, denying similar requests for emergency relief from the new administration. The Trump-era shadow docket cases revealed a Court willing to short-circuit the normal judicial process to advance particular policy outcomes. Rather than allowing controversial policies to be fully litigated before they took effect, the Court repeatedly intervened to implement them immediately, often without explanation. As Justice Sotomayor observed in a 2020 dissent, "The Court's recent behavior on stay applications has benefited one litigant over all others"—the Trump administration. This pattern undermined the Court's claim to be applying neutral principles rather than political preferences. Perhaps most significantly, the Trump administration used the shadow docket to achieve policy victories even when legal victories were unlikely. By the time litigation challenging Trump-era policies reached the Court for full consideration on the merits, President Biden had taken office and rescinded the policies, rendering the legal disputes moot. During the 2020-2021 term alone, the Court dismissed five different challenges to Trump policies that it had previously agreed to resolve. Thus, the shadow docket allowed the administration to implement controversial policies for years without ever having to defend their legality in a full Supreme Court hearing.

Chapter 5: COVID, Religion, and Barrett's Impact on Religious Liberty

The COVID-19 pandemic presented unprecedented challenges for American society, including novel legal questions about the extent of government power during a public health emergency. While the Court addressed COVID cases involving various constitutional rights, none proved more consequential than those concerning religious liberty. Through a series of shadow docket rulings, the Court dramatically expanded First Amendment protections for religious exercise, fundamentally altering constitutional doctrine without the full briefing, argument, and deliberation that typically accompany such significant legal changes. The turning point came with Justice Amy Coney Barrett's confirmation to replace Justice Ruth Bader Ginsburg in October 2020. Before Barrett's arrival, Chief Justice Roberts had joined the Court's four more liberal justices in deferring to state officials on COVID restrictions. In May 2020, the Court rejected a California church's challenge to capacity limits on religious services, with Roberts writing that such public health decisions should be left to "politically accountable officials" during a pandemic. A similar challenge from Nevada met the same fate in July. Everything changed on November 25, 2020—the night before Thanksgiving—when the Court issued a 5-4 ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, blocking New York's capacity restrictions on houses of worship. Justice Barrett provided the decisive fifth vote, joining Justices Thomas, Alito, Gorsuch, and Kavanaugh. In an unsigned opinion, the new majority held that New York's rules likely violated the Free Exercise Clause because they treated houses of worship more harshly than some secular businesses. Chief Justice Roberts dissented, not because he necessarily disagreed on the merits, but because he believed emergency relief was inappropriate—the restrictions had already been lifted in the relevant areas, making the case effectively moot. This late-night ruling was just the beginning. Over the next five months, the Court issued a series of increasingly aggressive shadow docket orders expanding religious liberty protections. In February 2021, the Court partially blocked California's prohibition on indoor worship services. Justice Barrett wrote her first opinion on the Court—a one-paragraph concurrence to this shadow docket order—explaining why she voted to leave in place California's ban on singing during services while striking down the ban on indoor worship itself. The culmination came on April 9, 2021, in Tandon v. Newsom, where the Court blocked California's limit on in-home gatherings that applied equally to religious and secular activities. In a brief per curiam opinion, the majority explicitly embraced the "most-favored-nation" theory of religious liberty: "Government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." This represented a fundamental reinterpretation of the Court's landmark 1990 decision in Employment Division v. Smith, which had held that neutral laws of general applicability did not violate the Free Exercise Clause even if they burdened religious practice. What made these rulings particularly remarkable was their procedural context. The Court was not just staying lower court decisions pending appeal—it was issuing "emergency writs of injunction," a form of relief that, by statute, requires showing that the right to relief is "indisputably clear." Yet the Court was using these emergency orders to announce new constitutional interpretations that were anything but clear under existing law. As Justice Kagan noted in dissent, the majority was "making new law" through "unreasoned orders" on the shadow docket rather than through fully considered opinions after briefing and argument.

Chapter 6: The Purcell Principle: Election Rules and Partisan Advantage

As American elections have become increasingly litigious, the Supreme Court has developed a special approach to election-related emergency applications that has come to be known as the "Purcell principle." Named after a 2006 case, Purcell v. Gonzalez, this doctrine holds that courts should generally refrain from changing election rules close to an election to avoid voter confusion and administrative difficulties. While seemingly neutral, the Court's application of this principle through the shadow docket has had profound—and often partisan—consequences for American democracy. The Court's approach to election cases took on new significance during the 2020 election cycle, conducted amid the COVID-19 pandemic. As states modified voting procedures to accommodate public health concerns, a wave of litigation challenged these changes. The Court's responses to emergency applications in these cases revealed a striking pattern: the conservative majority consistently blocked judicial orders that would have made voting easier during the pandemic, while allowing state-imposed restrictions to remain in place. In April 2020, the Court intervened in Wisconsin's primary election, blocking a federal judge's order that would have extended the deadline for absentee ballots. The 5-4 ruling, issued the night before the election, forced thousands of voters to choose between risking their health by voting in person or losing their right to vote. Justice Ginsburg warned in dissent that the Court's decision would result in "massive disenfranchisement." Similar rulings followed in cases from Alabama, Florida, South Carolina, and Texas, with the Court repeatedly blocking lower court orders that would have made it easier to vote during the pandemic. The Court's approach to election cases became even more controversial after Justice Barrett's confirmation. In October 2020, the Court refused to restore a federal judge's order extending the deadline for counting mail ballots in Wisconsin, with Justice Kavanaugh writing a concurrence that embraced expansive views of state legislative power over elections. A week later, the Court declined to expedite consideration of a Republican challenge to Pennsylvania's extended ballot-receipt deadline, prompting an unusual statement from Justice Alito suggesting that the Court might invalidate ballots received after Election Day even after they had been counted. Perhaps the most consequential application of the Purcell principle came in February 2022, when the Court blocked lower court rulings that had invalidated Alabama's congressional redistricting map for diluting Black voting power in violation of the Voting Rights Act. The 5-4 decision, with Chief Justice Roberts joining the three liberal justices in dissent, allowed Alabama to use a map for the 2022 elections that a district court had found likely illegal. Justice Kagan's dissent criticized the majority for using the shadow docket to "signal or make changes in the law" without full briefing and argument. The Alabama ruling had immediate ripple effects. Within days, a federal judge in Georgia concluded that he was powerless to block that state's similar congressional map, citing the Supreme Court's unexplained Alabama order. A subsequent New York Times analysis concluded that the Court's shadow docket interventions in redistricting cases likely affected control of as many as seven House seats in the 2022 midterm elections—potentially determining which party controlled the chamber. What makes the Court's approach to election cases particularly troubling is its one-sided application of the Purcell principle. While the Court has consistently cited the principle to block judicial orders that would make voting easier or invalidate partisan gerrymanders, it has shown no similar reluctance to allow last-minute changes that restrict voting rights. This asymmetry has led critics to question whether the Court is applying neutral principles or advancing partisan interests through its shadow docket. As election law expert Richard Hasen observed, "The conservative majority has been willing to allow Republican-aligned challenges to voting rules to proceed while stopping Democratic-aligned challenges."

Chapter 7: The Cost of Shadows: Undermining Court Legitimacy

The shadow docket's explosive growth has come at a steep price for the Supreme Court as an institution. For generations, the Court has grounded its legitimacy in the principle that it provides carefully reasoned justifications for its decisions—that it is, in Alexander Hamilton's words from Federalist No. 78, an institution of "judgment" rather than "will." But the shadow docket's proliferation of unexplained orders undermines this fundamental premise, creating the impression of a Court acting on political preferences rather than legal principles. The Court's legitimacy crisis has deepened as its shadow docket rulings have become both more consequential and more ideologically divided. During the 2019-2020 term, there were eleven shadow docket decisions from which four justices publicly dissented, compared to only twelve 5-4 splits among the Court's fifty-three signed merits opinions. In nine of those eleven shadow docket cases, the four more liberal justices dissented together. This pattern of consistent ideological division on emergency applications continued after Justice Barrett's confirmation, with the three remaining Democratic appointees frequently dissenting together from the conservative majority's shadow docket orders. These divisions have become increasingly bitter and public. Justice Sotomayor wrote in a 2020 dissent that "the Court's recent behavior on stay applications has benefited one litigant over all others"—the Trump administration. Justice Kagan complained that the Court was using its shadow docket to "signal or make changes in the law, without anything approaching full briefing and argument." And in a 2021 dissent, Justice Breyer warned that the Court's emergency orders were creating "the public impression that the Court is simply an extension of the political process." The Court's defenders argue that its shadow docket interventions are necessary responses to lower court overreach, particularly the increased use of nationwide injunctions against executive policies. But this explanation fails to account for the Court's inconsistent application of emergency relief standards—blocking some nationwide injunctions while leaving others in place, often along lines that appear to track partisan preferences rather than neutral principles. As Justice Barrett inadvertently acknowledged in a 2021 concurrence, whether the Court intervenes on the shadow docket turns not only on legal standards but on "a discretionary judgment about whether the Court should grant review in the case." The lack of transparency in shadow docket decisions compounds these legitimacy concerns. When the Court issues unsigned orders with no explanation, the public cannot evaluate whether the justices are applying consistent principles or reaching results based on political preferences. This opacity is particularly problematic when the Court overturns lower court decisions that contain detailed factual findings and legal analysis. As Justice Kagan wrote in one dissent, "The majority today issues a one-paragraph stay order that does not so much as mention the reasoning of the decision below." The timing of shadow docket rulings further undermines public confidence. Many significant orders come late at night or just before holidays, when they receive minimal media coverage. The Court's decisions allowing federal executions to proceed in July 2020 came down at 2:10 a.m. and 2:46 a.m., respectively. Its ruling blocking New York's COVID restrictions on houses of worship was issued at 11:56 p.m. the night before Thanksgiving. These late-night rulings create the impression of a Court that prefers to operate in the shadows rather than in the light of public scrutiny.

Summary

The shadow docket represents a fundamental transformation in how the Supreme Court exercises power in American democracy. Through thousands of unsigned, unexplained orders issued with minimal public scrutiny, the justices increasingly shape the law and people's lives without the accountability that comes with fully reasoned opinions. This shift began with Chief Justice Taft's reforms giving the Court control over its docket, accelerated through the death penalty cases of the 1980s, and exploded during the Trump administration and COVID pandemic. What was once a mechanism for handling genuine procedural emergencies has become a vehicle for implementing substantive policy preferences without the deliberative process that typically accompanies significant legal changes. This evolution threatens the Court's legitimacy in profound ways. When the justices issue consequential rulings without explanation, often along ideological lines and frequently late at night, they undermine the principle that the Court's authority rests on reasoned judgment rather than political will. The shadow docket's growth coincides with declining public confidence in the Court as an institution, with recent polls showing approval ratings at historic lows. To restore trust, the Court must return to its traditional practice of reserving significant legal changes for fully briefed and argued cases with signed, reasoned opinions. Congress could also help by codifying standards for emergency relief and requiring greater transparency in the Court's procedural rulings. Without such reforms, the shadow docket will continue to cast a long shadow over the Court's claim to be an institution of law rather than politics.

About Author

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Stephen Vladeck

Stephen I. Vladeck (@steve_vladeck) holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Professor Vladeck has argued over a dozen cases before the U.S. Supreme Court, the Texas Supreme Court, and various lower federal civilian and military courts; has testified before numerous congressional committees and Executive Branch agencies and commissions and the Texas legislature; has served as an expert witness both in U.S. state and federal courts and in foreign tribunals; and has received numerous awards for his influential and widely cited legal scholarship, his prolific popular writing, his teaching, and his service to the legal profession.Vladeck is the co-host, together with Professor Bobby Chesney, of the popular and award-winning “National Security Law Podcast.” He is CNN’s Supreme Court analyst and a co-author of Aspen Publishers’ leading national security law and counterterrorism law casebooks. He is editor and author of "One First," a popular weekly newsletter about the Supreme Court. And he is currently writing a book on the rise of the Supreme Court's "shadow docket," to be published by Basic Books in May 2023.

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