The Supreme Court has greater power than it used to, and owing to its “shadow docket,” it may make important decisions that touch every American without ever issuing a written decision.
That’s my conclusion from Stephen Vladeck’s latest book, which is both entertaining and instructional. Vladeck is a law professor at the University of Texas and a CNN contributor.
I spoke with Vladeck about his upcoming book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” which will be released on May 16. The following are excerpts from our phone chat.
What exactly is the shadow docket?
WOLF: Can you explain what you mean by “shadow docket” to people?
VLADECK: The phrase is not mine. Will Baude, a law professor at the University of Chicago, created the phrase in 2015.
Will intended it as an umbrella phrase. Not in a derogatory sense, but simply to describe the fact that the vast majority of Supreme Court opinions are ignored by the public.
They aren’t the elaborate rulings on the merits docket. They are not situations in which the court hears oral arguments and issues long decisions with concurrences and dissents.
An unsigned, unexplained order is the typical shadow docket ruling. And the most of them are uninteresting. However, not all of them.
Will’s perspective, which I’ve shamelessly stolen, is that a lot of really important stuff happens through unsigned, inexplicable directives. Because they are unsigned and unexplained, we should care about them, talk about them, study them, and try to deduce bigger patterns from them.
Republicans benefited from the shadow docket in the midterm elections.
WOLF: You write about how the court overturned or changed congressional maps in three states, Georgia, Alabama, and Louisiana, without explaining why. Republicans now hold a four-seat advantage in the House. Do you believe those decisions have an impact on who would control the House?
VLADECK: I believe it is close. We’re talking about two court rulings in Alabama and Louisiana, and those decisions were quickly followed in Georgia.
There is no doubt that, but for the court’s intervention, Democrats would have controlled at least three House seats in the current Congress rather than Republicans.
What I find difficult to predict is what other impacts might have occurred. According to the New York Times, those decisions might change control of seven to ten House seats. That, I believe, is more circumstantial.
There is no doubt that the decisions in the Alabama and Louisiana trials contributed to the Republicans’ present House majority. It’s debatable if they have a direct impact on control.
Is the bad behaviour still going on?
WOLF: Justice Samuel Alito makes no apologies for using the shadow docket. It irritates Chief Justice John Roberts and other conservatives. What has changed in the last few months? Has it been used in any way since you finished authoring this book?
VLADECK: In terms of what I consider to be problematic behaviour on the shadow docket, I believe we have seen less of it in the short run. And I believe we can see patterns of that all the way down to October 2021, when Justice (Amy Coney) Barrett published this cryptic concurrence in a case involving the Covid vaccination mandate for Maine health care workers.
It was delphic in what it said, but it signalled a split between Barrett and (Brett) Kavanaugh, who joined that opinion, and Justices (Clarence) Thomas, Alito, and (Neil) Gorsuch in terms of how frequently and in what kinds of cases they were willing to intervene on the shadow docket.
There were no dissents from Richard Glossip’s participation in the Oklahoma death penalty case last week. Even in April, there were just two public dissents to the mifepristone verdict.
One of the more intriguing tales here is that the court appears to have modified at least part of its behaviour. Part of that, I believe, is because the median justices have become convinced that some of the court’s previous behaviour is undesirable.
How did the extraordinary become commonplace?
WOLF: Do you have any opinions on the rationale behind the emergence of the shadow docket, which you attribute to the appointment of Justice Barrett and the formation of this new conservative supermajority? Do you believe the more conservative justices made an intentional effort to exploit this?
VLADECK: The short answer, I believe, is no. But I’m sure there will be some who disagree.
The book attempts to unpack some of this chronologically, because I believe the story makes more sense when presented in order.
Beginning in 2017, the court faced an extraordinary surge of emergency applications from the Trump administration. It reacted to those applications incrementally, one at a time, without taking a step back and looking at the entire waterfront, so the court dug itself deeper and deeper.
If the justices had taken a step back and asked if this was a practise they wanted to support, they might not have said yes. And I believe that with each new action, with each new situation, what was before spectacular became ordinary.
The conservative majority just routineized interventions that were previously unheard of.
Only when we get to the Covid cases in 2020 and 2021 does it appear that some of this is deliberate, because it’s only in those cases that we see the court deciding legal questions on the shadow docket through emergency applications that were already before the justices on the merits docket.
There was nothing barring the court from utilising merits cases to address these religious liberty issues, and the court did so nonetheless via the shadow docket.
I believe it began as an unstructured, off-the-cuff reaction to the Trump administration’s unusually hostile behaviour and then developed into something else as time passed.
In the United States, there is a patchwork of rights.
WOLF: You use the Obergefell decision (which legalised same-sex marriage throughout the country) to argue that the court had previously spoken on same-sex marriage through years of inactivity. For many years, the court had accepted a patchwork of marriage laws. Reading that made me think we’re back there with abortion rights. Especially with firearms. Despite the homosexual marriage judgement, the patchwork structure of rights in this country is expanding rather than contracting.
VLADECK: I believe it has increased in some areas while contracting in others. The more the Supreme Court constitutionalizes things, the less patchwork there will be.
When it comes to the Second Amendment, I believe it is less of a patchwork, because courts are striking down more and more variations in how communities govern guns for violating the federal Constitution. Against cases in which the court deviates from constitutional enforcement, such as abortion. It is more contextual than categorical.