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I. Introduction
The October 2020 Supreme Court of the United States term ended after granting an unprecedented number of applications for Emergency relief (including seven emergency injunctions against state laws).1) These were both the highest totals for any term in history. These types of rulings are included in the body of Supreme Court decisions that fall outside the “merits’ decisions and until recently, have had very little academic or public attention. They are part of a group of decisions known as the “shadow docket,” a term coined by University of Chicago Professor William Baude, referring to a class of decisions decided without or with minimal briefing, without public oral arguments and released with no reasoning or information regarding the voting of the Justices.2)
Historically, due to the lack of frequency and the lack of controversy attached to those cases, in particular the emergency relief denials, which often would result in later briefings and hearings, most of these cases have not been scrutinized in the public eye. On their face, they are not problematic, as this procedure has most frequently been utilized in cases that require exigency (such as death penalty executions) and do not widely affect the American public with sweeping changes to substantive law. This recently has changed, with the increased usage of these rulings in highly controversial cases, that are highly unpopular with the majority of Americans and that appear to be decided upon partisan lines, advancing conservative goals at a rapid pace (without public hearing or rationale provided).
The rise of non-transparent, unexplained decisions that have been ordered by utilizing this “emergency” procedure is a continuation of the attempt to quietly shift federal power through passive action, which I previously outlined in a prior publication.3) It is also in line with the repeated drumbeat of fear and necessary immediacy that permeates modern politics and motivates populist discourse.
In this article, I will focus on the recent shift in decisions, providing an overview of the Supreme Court procedure. I will outline the recent increase in emergency injunctions, the partisan results, the danger of the trend for all sides of the political spectrum regarding the legitimacy of the court, identify remedies that could increase transparency and legitimacy and lastly, consider restructuring the Court to reduce increasingly unchecked power.
II. Extraordinary and Emergency Jurisdiction
The system for judicial review before the Supreme Court is a long and arduous process, often taking many years.4) The typical Supreme Court case has worked its way through the lower courts and has reached the Court after multiple rulings on the merits by the federal appellate court or alternatively, the court of last resort within its state or territory. This route, though familiar and routine, is not constitutionally required. Article III of the Constitution allows the Court to exercise broad appellate jurisdiction that is not limited to review of final rulings.5)
It makes sense that there are alternate ways to get before the Supreme Court, as sometimes a controversy is in need of more immediate redress. It is undisputed that the shadow docket is one way to provide this relief. There must be a way for courts to hear a case where without immediate action, irreparable harm will occur.
The Court has the power to review cases in much more expansive situations, such as under, 28 U.S.C. § 1254 (1), which states “cases in the courts of appeals may be reviewed by the Supreme Court…[b]y writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree.” This allows the Court to step in, prior to a case making its way through the juggernaut of appellate review. This is the typical source of jurisdictional power that allows the Supreme Court to “jump in” at any time after the case reaches the court of appeals.
In addition, more statutory authorization allows the Supreme Court to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”6) The All Writs Act7) is interpreted to allow SCOTUS to issue writs directly to the trial courts, even in cases where appeals must go through the court of appeals.8) These writs are usually writs of mandamus, prohibitions, or injunctions, which instruct government officials to do or to stop doing a particular action.
The Court has the power to provide emergency relief as well, which is the main focus of this article. This power is ordinarily utilized by issuing stays or lifting stays of lower courts where there is a final judgment that is subject to review by the Supreme Court on writ of certiorari. The All Writs Act and 28 USC § 2101(f) provide that the Court or ANY ONE Justice may “stay the execution and enforcement of such judgment or decree…for a reasonable time to enable the party aggrieved to obtain a writ of certiori from the Supreme Court.”9) This, along with the long standing writ of habeas corpus, also a statutory power, gives the Supreme Court “extraordinary” authority to supervise the entire federal judicial system.
This power, to grant extraordinary relief, historically, was described as “drastic and extraordinary remedies.”10) The procedural rules and precedent was previously clear that the relief should be used “only where appeal is a clearly inadequate remedy”11)
Supreme Court Rule 11controls pre-judgment certiorari and states that it should only be granted “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Supreme Court Rule 20 controls the procedure for “extraordinary writs” (which includes both writs of mandamus and emergency writs of injunctions, which are the most extraordinary and unusual form of relief) is clear that these remedies should be issued “of discretion sparingly exercised” and sets forth that a petitioner must demonstrate “exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form.”12)
In cases of stays and lifting of stays, which more common than pre-judgment certiorari and extraordinary writs, are also reserved for “extraordinary cases.”13) The Court can rule as a whole, or as an individual Justice in chambers, but in both circumstances there are three factors that the Court considers “(1) ‘a “reasonable probability” that four Justices will consider the issue sufficiently meritorious to grant certiorari…’;(2) ‘a fair prospect that a majority of the Court will conclude that the decision below was erroneous’; and (3) a likelihood that ‘irreparable harm [will] result from the denial of a stay.”14)
It is uncontested that the Supreme Court has the jurisdictional authority to grant emergency or extraordinary relief, it is also not contested that the Supreme Court has the authority to issue judgments without a full briefing, argument, amicus participation and transparent written rationale. But, when the decisions being handed down without those procedural safeguards, under the guise of an emergency or extraordinary situation, change the status quo in regards to fundamental rights and litigants are left with little to no recourse, the authority must be revised.
III. The Extraordinary Becomes Ordinary
As stated previously, the shadow docket has not been a hotbed of academic or political debate until recently. Professor Vladeck, in his article analyzing the Solicitor General and the Shadow Docket15), his testimony before Congress and through his thoughtful and thorough Twitter account, has, for the last four years, compiled data measuring the rise of the shadow docket. He has focused on orders that change the status quo (either through staying a lower-court decision or mandate pending appeal, vacating a stay imposed by a lower court, granting an emergency writ of injunction pending appeal and vacating a lower-court’s grant of an emergency injunction).
He testified and provided the following table documenting the frequency of those types of relief since Chief Justice Roberts’s first Term. It clearly shows the increase in grants of Emergency Relief in the past decade. It also shows an increase in the requests for the more extraordinary requests to grant or vacate injunctions (which were not present until 2013 on this chart).
16. The data were collected by running a series of different searches through Westlaw's Supreme Court database. Given the different terminology that the Court (and individual Justices) use in describing emergency relief in some of these contexts, there may be slight variations compared to any official data source (if one exists).
Though it does seem As Professor Vladeck testified, the quantity of the cases is not the concern, it is the type of cases and the affect that the rulings have in terms of substantive law and procedure, that is of great concern. His testimony pointed out that the change was not merely quantitative, but also qualitative. The increase in granting the truly “extraordinary” injunctions that disrupt the status quo being the largest concern. In the next section, three cases will illustrate the shift in the distinction of what the Roberts’ Court views as “extraordinary,” the lack of consistency in analysis of what is an emergency and how this is a dangerous trend that must be changed.
IV. Substantive Impact of the Shadow Docket
The previous shadow docket emergency injunctions, the most extraordinary and unusual form of relief, were mainly involving executions at the 11th hour and the necessity for emergency action was clear (a person would be executed if the Court did not act). Those types of rulings had a great impact but not a wide reaching impact. The more recent rulings, starting with Trump’s travel bans, challenges to the border wall, the “Remain in Mexico” asylum policy, Tandon (Covid-19 regulations and church gatherings), Alabama Association of Realtors (Eviction Moratoriums) and Whole Woman’s Health (Ban on Abortion after six weeks) are directly enjoining statewide or federal policies, having a larger impact substantively. I will discuss the latter three, which illustrate the illogical application of emergency rulings and also the lack of consistency and rationale as to measuring irreparable harm.
The Supreme Court issued a 5-4 decision that enjoined California’s COVID-related ban on religious gatherings in private homes. This unsigned, per curiam opinion was handed down at 11:34 PM EDT on Friday, April 9, 2021. The decision was issued seven days after the application for injunctive relief was filed.
With this ruling, the Court created new law under the Free Exercise Clause of the First Amendment. The Court cited prior decisions in their issuing of the injunction,18) but newly interpreted the Constitution to apply the concept of the “most favored nation” theory. This theory applies in cases where the State has made an otherwise neutral law that might incidentally burden some kind of religious expression (in this case public health regulations). If there are any exceptions for what the court believes is “comparable “secular” activity, the regulation is constitutionally suspect.
This case created a new level of scrutiny without as much as a public hearing. In addition to a new protection for religious liberty, the Court also enjoined the State of California, issuing the most extraordinary and unusual relief.
The Supreme Court creating new law and issuing an injunction pending appeal, rather than a stay highlights the concern with this shadow docket. An injunction is only supposed to be issued “sparingly, and only in the most critical and exigent circumstances,” where “the legal rights at issue are indisputably clear.”19) Although this ruling did accompany a four-page per curiam opinion, this opinion was released without oral arguments or full briefings, which is shocking, considering the legal rights were not litigated fully before the court prior to finding that they are indisputably clear.
In addition to this case, the Court had previously enjoined New York COVID restrictions that were no longer in effect on the ground that they also violated the First Amendment Free Exercise of religion.20) The Court justified this intervention in the unsigned 5-4 opinion by creating a hypothetical secondary attempt by New York to pass the COVID public health restrictions. This pre-emptive ruling is clearly in opposition to the requirement that injunctions prior to the appellate procedure are to be granted only in the most “critical and exigent circumstances.” In addition, it must be noted that this hypothetical concern of future State interference with rights is nowhere to be found in the other two cases briefed below.
In another unsigned opinion, the Supreme Court granted an application lift a stay and enforce the District Court’s judgment vacating the Centers for Disease Control and Prevention’s imposition of a nationwide moratorium on evictions of any tenants who live in a county that is experiencing substantial or high levels of COVID-19 transmission and who make certain declarations of financial need. This 8 page, per-curiam opinion was released at 10 PM on Thursday, August 26, 2021, six days after the application was filed.
This case, though not tied to the First Amendment as the Tandon case was, is one where the Court changed public policy that affects millions of people. Justice Breyer, in the dissenting opinion, joined by Justices Sotomayor and Kagan, clearly stated his opposition to the use of the shadow docket to decide such a matter of great importance and reach. “Today, this Court, as an emergency matter, without full briefing or argument, blocks that order by vacating a lower court’s stay.” He then goes on to list the four factors which precedent has held must be present to vacate a stay entered by a lower court.22)
Justice Breyer goes on to discuss the grave danger of the pandemic at the time of the ruling, with the United States experiencing 150,000 new COVID cases per day and how those with no place to live are at higher risk of transmission of the Delta variant. He concludes “These questions call for considered decisionmaking, informed by full briefing and argument. Their answers impact the health of millions. We should not set aside the CDC’s eviction moratorium in this summary proceeding. The criteria for granting the emergency application are not met.”
The majority of the Supreme Court did not agree and lifted the stay of the moratorium, creating more of a hazard for those in low income areas.23) The rationale for the emergency relief was explained by the authorless opinion stating that the applicants “not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing.” The focus on the merits without fully hearing oral arguments regarding the merits, without any analysis of the substantial injury that the other parties will suffer is not a full analysis of the standard of review and is essentially the court saying “we have already made up our mind.”
When the Supreme Court issued a one paragraph, unsigned 5-4 majority declining emergency relief sought by Whole Women’s Health (a health care provider that performs abortions as part of their practice) at 11:58 PM on Wednesday, September 1, 2021, the shadow docket was finally recognized by the mainstream media and immediately decried by legal scholars who had seen this result coming.
The procedural intricacies of this case are unusual (by design) and based on those alone, it would be prudent for a Court (even one that sought to outlaw abortions after six weeks) to fully litigate and write a full opinion, but that is not what happened in this case. I will provide some background to fully explain the Texas state law that is the subject of this case.
Texas Governor, Greg Abbott, signed SB8 into law May 2021. The law bans “all abortions performed on any pregnant person where cardiac activity has been detected in the embryo, with no exceptions for pregnancies that result from rape, sexual abuse, incest, or a fetal defect incompatible with life after birth. S.B. 8 is enforced through a dual private and public enforcement scheme, whereby private citizens are empowered to bring civil lawsuits in state courts against anyone who performs, aids and abets, or intends to participate in a prohibited abortion, and the State may take punitive action against [providers[ through existing laws and regulations triggered by a violation of S.B. 8—such as professionally disciplining a physician who performs an abortion banned under S.B. 8.” 25)
Previously, thirteen states have enacted so-called fetal heartbeat laws, which use the same cardiac activity within the embryo test.26) Courts have previously enjoined their enforcement as unconstitutional. These laws prohibit abortions after 6 weeks of gestational age of the embryo (which is before most women know they are pregnant). Due to the unique feature of civil enforcement, which has been referred to as a “bounty” by opponents of this law, is, as Professor Vladeck testified a plan to “frustrate and incentivize.”27) Pre-enforcement review is frustrated because even if one potential defendant is identified correctly, there is no way to bar all potential enforcement actions (because literally anyone could start a lawsuit). The law also prohibits providers from recovering costs or fees, even with frivolous suits, and allows a basis for liability if abortions are performed while SB8 is subject to a judicial temporary restraining order. This incentivizes defendants to participate in endless lawsuits with no potential risk, the providers having to pay for defense and a potential to collect the $10,000 “bounty.” 28)
This law went into effect on September 1, 2021, after the Fifth Circuit blocked all proceedings in District Court by granting an administrative stay (without any written reasoning) and despite the providers seeking emergency relief in the Supreme Court on Monday, August 30, 2021. The court did not even issue a temporary administrative stay, despite having previously done so in an unrelated case regarding immigration. Rather, through inaction, it allowed the Texas law to go into effect on September 1, 2021. The next night, the Court issued a ruling denying a stay or injunction with a one paragraph, unsigned opinion.
The Court’s order was confusing and relied on the purposeful procedural issue of enforcement against (potentially unlimited) civil defendants. The Court did NOT hold that this was a procedural obstacle, but rather that it was a question. Typically, when the Court is provided a procedural question, a case on the merits is warranted and full hearings, amicus briefs and oral arguments are the way to resolve these questions. In this case, the court simply stated that it was unclear and declined to grant relief. Once again, not following procedural precedent which would analyze the case in terms of potential harm to parties and public interest.
It is estimated that SB 8 would prevent more than 8 in 10 people from obtaining abortion care.29) The procedural analysis did not even consider the substantial injury that pregnant people in Texas would suffer or where the public interest lies. Justice Sotomayor, in her dissent, stated “Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention.”30)
Roe v. Wade is unquestionably constitutional precedent, it provides for a constitutional right to a pre-viability abortion, it does not allow states to ban all abortion after cardiac activity is found in an embryo. The Supreme Court, by not issuing a temporary stay or injunction, has allowed a state law which is unconstitutional to stand. As many have pointed out, this is terrible precedent for the ability of this Supreme Court to protect any and all constitutional rights.
V. Shadow Docket Problems
The previous cases show that the current Supreme Court is making substantive changes to precedent and law that affects millions of people by using a method that avoids transparency, accountability and has been recently applied without engaging in clear procedural precedent. The Court has seemingly decided that some cases (involving religious liberty in particular) are exigent and are in need of this “fast track” in order to protect constitutional rights and that others (involving low income people or women’s reproductive rights) are not an emergency or even worth the procedural analysis to deny review.
If it were purely an ideological concern, critics would not be asking for more clarification (more explanation or complete rationales spelled out in precedent). If the Court is looking to end eviction moratoriums, COVID-19 restrictions on gatherings, or ban abortions, they should give full reasoning and guidance to courts below.
In addition to the lack of reasoning explained, the legal community and the legitimacy of the Court is diminished when amicus briefs are not accepted, the parties (both aggrieved and defending) are able to fully brief their legal arguments and the parties have a full oral argument. It leaves the impression that the Justices have already made up their minds and that the appellate process will provide no new or novel solutions to these procedural or substantive quandaries.
This procedure greatly undermines the Court’s legitimacy, which has been pointed out by academics, the media, and the dissenting Justices during this last year. While writing this article, it appears that the conservative justices have been paying attention to the critiques of the shadow docket and the inconsistent, unexplained and seemingly all Republican policy affirming cases that have recently been decided. In response, Justice Samuel Alito gave a speech regarding the shadow docket at The University of Notre Dame Law School.31) He stated that “the catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways…” In addition, Justice Amy Coney Barrett recently spoke out at a celebration of the Mitch McConnell University of Louisville facility, stating the Supreme Court is “not comprised of a bunch of partisan hacks.”32)
Progressives or liberals are not the only ones with concerns regarding this procedural trend. The coining of the “shadow docket” was actually not by a progressive that was concerned with the right leaning nature of the results, but rather, a former clerk of Chief Justice Roberts and the author of the 2020 commentary “Conservatives, Don’t Give Up Your Principles or the Supreme Court” in the New York Times.33) In his 2015 paper he expresses concern with fairness and the lack of transparency leading to a depersonalization of the Court.
The concerns of the shadow docket, in particular the lack of clear rationale and the confusion over whether the court is creating precedent or not, should be one that scholars on all sides of the political spectrum share. It does not foster confidence nor does it create a legal environment where arguments are heard and legitimately reviewed. Rather it appears that the Justices have decided prior to hearing any of the arguments or lower court review what they believe the law should be. That is not a system of appellate review, that is a lifetime appointment for 9 people to give their opinions based on their opinions alone.
VI. How to Remedy the Trend
There are some who believe that the Court has already lost it’s legitimacy, that it has been lost to partisan politics since 2016 when Justice Scalia died and the Republican Senator Mitch McConnell refused to hold hearings on the nomination of Merrick Garland. He withheld the nomination process for nine months after the death of Justice Antonin Scalia. It was then a strategy that he reveled in when he pushed Justice Amy Coney Barrett through the nomination process in just over a month, to avoid a nomination by President-elect Joe Biden. For those that believe this partisan game of nominees has already tainted the court beyond repair, the way to remedy this situation is to dilute the power of the nine justices by increasing the number of Supreme Court justices.
To do so, the Senate Democrats would need to eliminate the filibuster and pass the current legislative bill sponsored by Senator Edward Markey and Senator Tina Smith to increase the number of Justices to 13.34)
Some less aggressive and more deferential approaches have been proposed by Professor Vladeck, who outlined reforms both within the Court and also with Congress in his testimony before congress on September 29, 2021. The Court based reforms include: Circuit Justices resolving emergency applications individual and formally publishing those decisions (with or without an opinion), formalizing rules and norms to provide guidelines for emergency applications, which allow for oral argument and amicus participation, requiring statutory authority for denial or granting of emergency relief, treating applications for emergency relief as petitions for certiorari, and making a schedule of releases with public notice.35)
The Congressional reforms suggested are as follows: Allowing the federal government to transfer nationwide injunctive relief to the DC District Court, speeding up appellate timelines in cases with any governmental action is enjoined by a federal court to allow priority, codifying the traditional four-factor test that the Court applies in considering applications for emergency relief, and encouraging Justices to hold hearings when there is a chance relief will be granted.36)
Out of these proposals by Professor Vladeck, the codification of the four-factor test that the Court applies is the most imperative. It is clear that the current Supreme Court has not applied these factors in their recent rulings and the failure to do so has left millions without a full review by the Court of last resort. In addition, the Court, if they wish to be respected as non-partisan legal minds, they must apply a standard of review for emergency injunctions and stays that provides robust analysis of irreparable harm and honors the public interest. Without full, transparent analysis, they will continue to give the impression that they are hard at work for the constituents and Senators that placed them on the Court rather than impartial jurists seeking for a more perfect union.
