THE SHADOW DOCKET: How the Supreme Court uses stealth rulings to amass power and undermine the Republicby Stephen Vladeck
“Because Y is a crooked letter”: The first time I heard a parent say this to her child, it took me a while to understand what she meant. The boy had asked, “Why?” about a perceived injustice – an order to leave the playground before he was ready. The mom’s response was just a poetic variation on that old standby “Because I said so.” No explanation was given because it was not necessary. Mom laid down the law. The child had to obey. Case closed.
This episode came to mind when I read Stephen Vladeck’s important new book on the Supreme Court, “The Shadow Docket.” The title is in stark contrast to the so-called merit roll we usually associate with the court, which includes extensive briefings, extensive pleadings and written opinions signed by the judges detailing their reasoning. But merits decisions appear to be “only a small piece” of the Supreme Court’s output, Vladeck writes. All the towering rhetoric and painstaking legal analysis account for just over 1 percent of court rulings.
That’s right – nearly 99 percent of court decisions are made on the shadow scroll, a term coined in 2015 by conservative legal scholar William Baude for those orders that are not subject to the “high standards of procedural regularity that by its merit fallen.” Orders on the shadow scroll are, in Vladeck’s description, “unseen, unsigned, and almost always unexplained”: the legal equivalent of “Because I said so.” While such summaries are not new — they emerged in the past century as a way to help the judges manage their growing workload — Vladeck argues they are being deployed more frequently and in ever newer ways. The shadow role doesn’t just serve as a neutral domain of routine case management; instead “the court’s new conservative majority has obscure procedural orders used to shift US jurisprudence to the right.”
Vladeck, a professor at the University of Texas School of Law and an analyst at DailyExpertNews, talks about how the shadow role came about. He traces the development from a generally weak Supreme Court in the antebellum era to one that, in the early 1900s, had extensive discretion in deciding which cases it wanted to hear (and which not) by allowing ( or to deny) what is known as a “certiorari summons” as part of his shadow role. But it was the death penalty, he says, that really gave rise to the shadow scroll as we know it. The finality of an execution meant that all appeals had to be fully resolved before anyone was put to death. A prisoner seeking emergency help from the court can petition for an expedited sentence, arguing that an unlawful execution would cause “irreparable harm”.
This all sounds simple enough. But as Vladeck shows, what exactly constitutes “irreparable damage” – and, by extension, an “emergency” – is a matter of interpretation. The one-term Trump administration sought emergency relief from the Supreme Court a whopping 41 times. (Compare this to the 16 years of the George W. Bush and Barack Obama administrations, when attorneys general sought relief a total of eight times.) In fact, “shadow role rulings from the Supreme Court pave the way” for federal executions to resume under Trump by canceling the suspension or order of a lower court.
A conscientious guide through the legal thicket, Vladeck shows exactly how the court’s conservative members have used the shadow scroll to expand religious freedom and destroy reproductive rights. Nearly 10 months before the June 2022 Dobbs decision, the court’s conservative majority refused to block Texas’s ban on abortion after the sixth week of pregnancy, despite the ban contradicting Roe. Justice Elena Kagan penned a blistering dissenting opinion criticizing “the shadow role decision-making of this court, which is becoming more unreasonable, inconsistent and impossible to defend every day.”
With ‘The Shadow Docket’, Vladeck has taken on the task of translating the court’s deliberately cryptic orders and legal details into accessible English. Inevitably, however, his topic can become so complicated that it forces him to write mouthfuls like this: “Judge Alito had issued an administrative stay to temporarily prevent another district court’s administrative order against an immigration policy of the Biden administration would take effect until the full court could rule on the Justice Department’s request for a stay pending appeal.” I had to read that sentence so many times that my eyes began to water.
But Vladeck is at least trying to explain to us (as opposed to the court) what’s going on. He also makes every effort to be as fair and methodical as possible in this book, as even the term “shadow role” has drawn the ire of some conservative judges (“catchy and sinister,” mocked Samuel Alito; “catchy but worn-out complained Brett Kavanaugh). Vladeck is candid about his own opinion, saying when he agrees with a decision based on merit and when not. But even disagreement is preferable to the bewilderment caused by the shadow role, which is the usually leaves the public in the dark not only about why the judges decided the way they did, but also which judges did.We can discern their identities especially in cases where judges who disagreed with the verdict signed public dissent.
This is “Because I Said So” taken to another level. And as such, the promiscuous use of the shadow role ties into larger trust issues. Conservative judges tend to resent public criticism of the court, insisting that it works in good faith and in the public interest, even going so far as to suggest that any criticism is a partisan attempt to harm the institution. delegitimize. Vladeck replies by stating that he wrote this book precisely because he cares about the Supreme Court, which seems to operate under the delusion that it can maintain confidence while denying “the crisis of legitimacy that the justices’ own actions have created.”
This legitimacy crisis has clear implications for democracy. After all, only a seasoned authoritarian (or perhaps an irritable parent) will push for a trust that is unquestioning and utterly mindless—something taken for granted rather than earned.
THE SHADOW DOCKET: How the Supreme Court uses stealth rulings to amass power and undermine the Republic | By Stephen Vladeck | 334 pp. | Basic Books | $30