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I am here for Foreign Graduate Seminar to give a presentation.

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Shadow Docket (Expedited
SCOTUS Docket)
 1.
Docket
Let’s start with the first set of slides

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 Introductions for “Docket”

Collins Dictionary
A docket is a list of cases waiting for trial in a
law court.

Merriam-Webster
1. a brief written summary of a document :
ABSTRACT
2. a formal abridged record of the proceedings in a
legal action

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 Administrative Office of the U.S. Courts

“
“A log containing the complete history of each case in
the form of brief chronological entries summarizing
the court proceedings.”

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 FRCP R 79. Records Kept by the Clerk

“
(1) In General. The clerk must keep a record known as the “civil docket” in
the form and manner prescribed by the Director of the Administrative Office
of the United States Courts with the approval of the Judicial Conference of the
United States.
The clerk must enter each civil action in the docket. Actions must be assigned
consecutive file numbers, which must be noted in the docket where the first
entry of the action is made.

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 FRCP R 79. Records Kept by the Clerk

“
(2) Items to be Entered. The following items must be marked with the file
number and entered chronologically in the docket:
(A) papers filed with the clerk;
(B) process issued, and proofs of service or other returns showing execution;
and
(C) appearances, orders, verdicts, and judgments.

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 2.
Shadow Docket
Let’s start with the second set of slides

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 Explanation of Shadow Docket

“
The Supreme Court’s non-merits or motions docket, sometimes informally
called the Court’s “shadow docket.”

The phrase "shadow docket" was first used in this context in 2015 by
University of Chicago Law professor William Baude.

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 Merits

▣ Judgment on the merits. A judgment based on the evidence rather than on technical or
procedural grounds. — Also termed decision on the merits.

▣ Fundamentally, the shadow docket is where the Court rules on procedural matters, such as
scheduling and issuing injunctions. But its role is changing, and the full story is more complex.

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 The merits docket vs. shadow docket

The Supreme Court is asked to review more than 7,000 cases each year and accepts 100 to 150 of
them. Cases on the Supreme Court’s merits docket entail a scheduled and public hearing, a review
of legal briefs, and oral arguments. After what is often a months-long process, the court then issues
a decision with a lengthy opinion explaining its reasoning, often with concurrences and dissents.

This merits docket route is how the Supreme Court processes and delivers big decisions like Brown
v. Board of Education or the recent Students for Fair Admissions, Inc. v. Harvard.

Alternatively, the shadow docket functions as an accelerated route for the Supreme Court to reach
decisions and has been used mostly for administrative decisions.

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 Supreme Court Motions Practice and the Non-Merits Docket

The Supreme Court’s decisions generally take different forms in merits cases and in non-merits
matters. When issuing a merits decision, the Court usually publishes a written opinion that explains
the Court’s reasoning and notes which Justice authored the opinion and which Justices joined it.
Justices may also file separate opinions concurring or dissenting in full or in part; those separate
opinions are also signed by their authors and any other Justices who joined them.
By contrast, the Court frequently decides non-merits matters using summary orders. While those
orders sometimes include a brief explanation of the legal reasoning underlying the decision, they
often lack legal analysis. Nor do summary orders typically reveal how the Justices voted. As with
merits decisions, Justices may concur in or dissent from non-merits decisions, and may elect to file
separate statements explaining their position.

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 What is the shadow docket?
The Supreme Court’s emergency docket, also known as the shadow docket,
consists of applications seeking immediate action from the court. Unlike the
merits docket, these cases are handled on an expedited basis with limited briefing
and no oral argument, and the court often resolves them in unsigned orders with
little or no explanation.
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 What is the shadow docket?
The shadow, or emergency docket, is the way many cases today, sometimes
hugely consequential cases, are decided, without full briefing or oral
argument, and without any written opinion.

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 Explanation of Shadow Docket

“
Discussion of Supreme Court cases often focuses on the Court’s merits decisions—opinions that the Court
issues after full briefing and oral argument.

However, the Supreme Court also issues many orders outside the context of merits decisions, including orders
granting or denying petitions for a writ of certiorari; rulings in emergency matters, such as requests to stay
lower court decisions pending appeal; and orders setting deadlines and other procedures for litigation before
the Court. Most decisions on the Court’s non-merits docket involve either granting or denying certiorari or
routine procedural questions, but some of the Court’s non-merits orders in emergency matters have a major
impact on high-profile litigation.

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 Definitions of Legal Terms
Certiorari
An order by which a higher court
reviews a lower court’s decision.
Certiorari is mainly used in the context
of the Supreme Court reviewing a lower
court decision.
(Parties unsatisfied with how a lower
court has ruled on their case might ask
the Supreme Court to grant a writ of
certiorari, which is a request that the
Supreme Court officially hear their
case).
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Emergency relief:
A request by a party for the Supreme
Court to stay the ruling of a lower court
while the appeals process continues. For
example, if a lower court deemed a
policy unconstitutional, the federal
government could appeal for emergency
relief from the Supreme Court to allow
the government to enact the policy
while the case was on appeal.
 Definitions of Legal Terms
Merits docket
A list of the cases resolved before the
Supreme Court with full briefing and
oral argument. Justices hold a recorded
vote and write detailed opinions
describing their reasoning.
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Orders list
A list of actions and decisions by the
Supreme Court that are not
encompassed by the merits docket,
including applications for emergency
relief. It is mainly used to announce the
granting or denying of certiorari,
changes in the Court’s schedule, or other
motions before the Court.
 3.
Use of the Shadow Docket
Let’s start with the third set of slides

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 Increasing Use of the Shadow Docket

▣ Professor Stephen Vladeck at the University of Texas Law School, who is the author of the
book “ The Shadow Docket” , has called 2017 “an inflection point” for the use of the
shadow docket. The Trump administration sought emergency relief 41 times, with the
Supreme Court granting relief in 28 of those cases.

▣ By comparison, over the prior 16 years the Obama administration and the Bush
administration together filed only eight emergency applications. The two administrations
together got what they wanted in only four of the eight cases.

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 Trends

“
As Vladek notes, “emergency orders used to be much rarer and mainly
deployed in death penalty cases prior to imminent executions.

Under the current court, they have been used to interfere with Covid-19
mandates and a host of other hot-button issues including border wall disputes,
COVID-19 restrictions, abortion laws, and federal executions.”

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 Cases

August 2021: Removing the Covid-19 eviction moratorium

One of the measures the federal government took to safeguard people during the Covid-
19 pandemic was to institute an eviction moratorium. In Alabama Association of
Realtors v. Department of Health and Human Services, the Supreme Court ended the
moratorium.

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 Cases

September 2021: Permitting Texas abortion ban to take effect

In Whole Women’s Health v. Jackson, The Supreme Court declined to block the new
Texas abortion ban. It was shocking not only because it signaled a major change to the
law but also in how the Court first addressed this issue: through a one-paragraph,
unsigned opinion issued without any oral argument, on the Court’s “shadow docket.”

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 Cases

June 2022: Permitting a congressional map ruled to be discriminatory ahead of

midterm elections
In Merrill v. Milligan, the justices reinstated Alabama’s gerrymandered Congressional
map after lower courts had ruled that the plan discriminated against Black voters in
violation of the Voting Rights Act. The result is that those maps will be in effect for at
least the 2022 election. Only two justices in the majority provided any reasons for their
decision.

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 Insights
The shadow docket process is a faster route to a decision. Part of its purpose is enabling the high court
to quickly resolve administrative-type requests from lower courts, such as extensions of time to file
petitions for writs of certiorari. But it is also less transparent, and recent shadow docket cases reflect a
notable shift in the nature of topics appearing on that docket since 2017.
This shift has also caused confusion for lower courts, which follow the precedent set by the Supreme
Court, because unlike the merits docket, the shadow docket process does not require written or
dissenting opinions.
These decisions may equally binding, and the consequences are just as serious as the cases on merits
docket, or maybe not.The Court has sent mixed signals, suggesting that such decisions are of little
precedential value. The Ninth Circuit Court of Appeals did not follow four prior Supreme Court rulings
involving California Covid-19 restrictions, all of which were shadow docket orders.

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 References

The “Shadow Docket”: The Supreme Court’s Non-Merits Orders, Congressional Research Service, LSB10637
https://crsreports.congress.gov/

What is the Supreme Court shadow docket?

https://usafacts.org/articles/what-is-the-supreme-court-shadow-docket/

The Shadow Docket: Shedding Light on the Supreme Court's Dangerous Use of Its Orders List,
https://www.demos.org/policy-briefs/shadow-docket-shedding-light-supreme-courts-dangerous-use-its-orders-list

The Supreme Court ‘Shadow Docket’

https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket

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 Thanks!
Any questions?
You can find me at
xxx@xxx

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