OPINION: The Dangers of the “Shadow Docket”


The Dangers of the Shadow Docket 


The conservative court is using the shadow docket to hide their partisan decisions.

OPINION: The Shadow Docket And It’s Fundamental Danger

The shadow docket consists of cases taken up on an emergency basis, outside the scope of the courts normal procedural order. . . .

By D. S. Mitchell

Partisan And Controversial Decisions

Recently it has been noted that the current court has disproportionately used the shadow docket to authorize its most partisan and controversial decisions. Nearly all of the court’s Covid-19 decisions have come from the shadow docket, specifically, both of its rulings on the CDC eviction moratorium came through this dark little understood process.

An Unsigned Opinion  

In August SCOTUS handed Biden a shocking ruling. The court ordered Biden to re-instate Trump’s “Remain in Mexico” program. Where did this ability suddenly manifest itself? The court has no authority over treaties with foreign governments. None. The outrage came in a single one paragraph unsigned opinion. The opinion gave no insight into the logic supporting the court’s decision to upend the constitutional separation of powers.  The court is now looking at the Texas abortion law. I’d call it a bit late. Less than a month ago the same court refused to take up the case, initially attempting to hide behind the shadow docket.

What We Expect

We fantasize the nine justices in their solemn black robes hearing robust debate in open court in front of spectators. Those venerable heads taking in the arguments  between opposing attorneys and ideologies, giving deliberate consideration to the legal issues of each individual cases. And then after long discussion, they issue their decisions to the world in long wordy opinions. But, that’s not what is happening folks. This heavily conservative court has slipped into a shadow zone, a place where justices lack the courage to sign their names to their own rulings.

Here’s How It Works

Here’s how it works. Lawyers are allowed to submit expedited briefs to make their “emergency” arguments, but they are not allowed to argue in person, in full view of the press and the public. These decisions don’t come after months of deliberation amongst the justices, but quickly and through whatever informal conversations the justices give time to the matter. Usually they don’t bother to explain to litigants the law or logic behind their decrees, instead issuing an order often amounting to a mere few sentences.

My Thoughts On The Matter

The conservative members of SCOTUS appear to be operating in bad faith, not  even bothering to make up legal reasons for their partisan hackery. Under “emergency” rulings the court is making up policy. Courts do not make policy. That is not their role. Unsurprisingly the policy this court concocts melds nicely with the Republican party’s political agenda. Using the shadow docket the court is attempting to cover it’s actions.

Hitting The Talk Shows

Recently several of the sitting justices, hearing angry rumblings across the country have taken to the airwaves. Their recent appearances across media platforms make it clear that the justices have noted that the public view of the supreme court is at its lowest level in decades. When you have justices making speeches at colleges and going on TV claiming they “are not partisan hacks” you can damn well be assured they know the public is on to them.

The Real Danger

The power now wielded by unelected conservative justices is unnerving to me, and should be worrisome to anyone, no matter their place on the political spectrum. Just to point out, any Executive Order signed by the president, any law passed by Congress can be undone in the dark of night, without reason or explanation. Since the Democrats lack the spine to proceed with court reform we can expect the six conservative judges to hold veto power over the Democrats entire political agenda.  Not just this year, or next, but for decades to come.

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