The Virtue of the ‘Shadow Docket’

The emergence of the Supreme Court’s so-called “shadow docket” is the subject of a scoop from the Times that paints the fast track as the justices’ “questionable new way of operating.” The Gray Lady calls the brisk way of doing business — without oral arguments or opinion writing — “a central legacy of the court led by Chief Justice Roberts.” It has, the paper reckons, handed President Trump “more than 20 key victories.”For the Times, the outcome of the rulings — Trump is winning them — appears to be the rub. The original sin, the piece reckons, is the court’s five to four decision in 2016, made on the emergency docket, to block President Obama’s Clean Power Plan, which his White House described as an “aggressive transformation in the domestic energy industry.” Chief Justice Roberts prodded the court to enjoin it even before lower courts had begun to weigh its merits.The accusation that the Roberts Court has gone about “warping procedures” strikes us as hogwash. The swelling of the justices’ emergency docket in Mr. Trump’s second term is better understood as a function of the unprecedented deluge of orders from lower court judges blocking elements of Mr. Trump’s agenda. So common had nationwide injunctions from district judges become that the high court curtailed them in Trump v. Casa.Attacks on the court’s modus operandi were foreseen by Justice Samuel Alito as long ago as 2021, when he declared 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.” He added that the “portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”Some of that critique, though, has come from within the hushed chambers of the high court itself. Justice Elena Kagan accused her conservative colleagues, in the case of Trump v. Boyle, of using “its emergency docket to destroy the independence of an independent agency, as established by Congress.” That concerned the president’s power to fire members of the Consumer Product Safety Commission.Justice Kagan may be formidable — a liberal legal lion of the first water — but the documents disclosed by the Times, the scholar Joshua Blackman notes, remind us “of why Roberts was the most gifted lawyer of his generation. He ran intellectual circles around opposing counsel, and I suspect he still does so with some of his colleagues. No one can match his speed and acumen. That must grate on the others.”Chief Justice Roberts, the documents show, also appears to have been driven by comments made by the then-director of the Environmental Protection Agency, Gina McCarthy. She told the BBC that the Obama Administration was “baking” the Clean Power Plan “into the system.” The chief cited those remarks to contend that without emergency action “this rule will become functionally irreversible” — thus frustrating judicial review. The leak of the court’s correspondence to the Times presents its own danger. Colloquies between justices require frankness. The scholar who coined the term “shadow docket,” William Baude, reflects that the “biggest scandal here is in fact the leaks themselves,” because such disclosures “will damage the institutional culture of the court and do little good.” The same can be said of the leak in Dobbs v. Jackson Women’s Health Organization.For our part, what stands out here is the virtue of the shadow docket. If, after all, the Constitution is, among other things, a vast contraption of checks and balances, then the shadow docket is a check and balance of its own. Leaking from the Supreme Court, after all, is not part of deciding the law. It is part of playing politics instead of reading and interpreting the meaning of the constitutional parchment.

The Virtue of the ‘Shadow Docket’

The Virtue of the ‘Shadow Docket’

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