Ruling part of 'shadow docket'

WASHINGTON – Most of the time, the Supreme Court appears to the public like a cautiously deliberative body. Before issuing major rulings, the justices pore over extensive written briefs, grill lawyers in oral arguments and then take months to draft opinions explaining their reasoning, which they release at precisely calibrated moments.

Then there is the "shadow docket."

With increasing frequency, the court is taking up weighty matters in a rushed way, considering emergency petitions that often yield late-night decisions issued with minimal or no written opinions. Such orders have reshaped the legal landscape in recent years on high-profile matters like changes to immigration enforcement, disputes over election rules, and public-health orders barring religious gatherings and evictions during the pandemic.

The latest and perhaps most powerful example came just before midnight Wednesday, when the court ruled 5-4 to leave in place a novel Texas law that bars most abortions in the state — a momentous development in the decadeslong judicial battle over abortion rights.

The court spent less than three days dealing with the case. There were no oral arguments before the justices. The majority opinion was unsigned and one paragraph long. In a dissent, Justice Elena Kagan said the case illustrated "just how far the court's 'shadow-docket' decisions may depart" from the usual judicial process and said use of the shadow docket "every day becomes more unreasoned, inconsistent and impossible to defend."

There is nothing new about the court having an orders docket where it swiftly disposes of certain matters. But with the notable exception of emergency applications for last-minute stays of execution, this category of court activity has traditionally received little attention. That is because for the most part, the orders docket centers on routine case management requests by lawyers, like asking for permission to submit an unusually long brief.

The court also uses it to dispose of emergency appeals. Each justice handles requests from a different region, and can reject them or bring them to the full court. And increasingly, the court has been using its orders docket — which was deemed the "shadow docket" in 2015 in an influential law journal article by William Baude, a University of Chicago law professor — to swiftly decide whether to block government actions, turning it into a powerful tool for affecting public policy without fully hearing from the parties or explaining its actions in writing.

But while there is broad consensus that the Supreme Court's use of the shadow docket for high-profile rulings is growing, defining the precise nature of the problem is complicated and subject to dispute.

"I don't think anyone thinks it is good to have a lot of last-minute requests for emergency relief that the court has to focus on and decide," said Samuel Bray, a University of Notre Dame law professor who testified about the shadow docket this summer before President Joe Biden's commission studying possible Supreme Court changes. "But there are difficult questions about what has caused the high-profile use of the shadow docket — and what to do about it."