Dem
53
Ties
2
GOP
45
Let us start this item with a brief bit of history. The Supreme Court's "shadow docket," as it currently exists, has only been around for a short time. Historically, these brief, emergency orders were used somewhat rarely, and usually for minor/procedural decisions, like halting an execution for a week. The basic idea was that the status quo might be unredeemable if events were allowed to take their course before the courts could weigh in properly, and so the Supremes were just granting a brief pause. There is, of course, no particular need to explain why a person should not be executed immediately, or to know which justices supported that position.
Chief Justice John Roberts is directly responsible for "innovating" the shadow docket into a situation where substantive legal rulings are made without the Court fully explaining its reasoning (or without the Court explaining its reasoning at all), and without a clear indication as to how each justice voted. The ruling that established the new regime came in 2016, because Roberts and some number of his colleagues wanted to halt the Obama administration's Clean Power Plan. So, the Supremes issued an unsigned decision blocking the program, and that was that. News coverage at the time included some of the very first uses of the term "shadow docket," which had only been coined a year earlier by former Roberts clerk and University of Chicago law professor William Baude.
We have made no secret of the fact that we are not fans of this practice, as it currently exists, because the lack of accountability is wholly undemocratic. And it could not be clearer that it's quickly gotten out of control. We wrote an item a week ago observing that the recently completed term was the first one during which SCOTUS made more decisions via the shadow docket than the regular docket. And yesterday, the Trump administration set a new record of sorts, making its 41st request for a shadow-docket ruling.
Here is a breakdown of shadow-docket requests by president since the start of the 21st century, per the Brennan Center for Justice:
As you can see, in 4 years, Joe Biden more than doubled the total for 16 years of George W. Bush and Barack Obama. And in his first 4 years, Donald Trump more than doubled Biden's total. Now, less than 2 years into his second term, Trump has already equaled his first-term total. At this pace—and there's no reason to think the current administration won't keep it up, particularly if they can't work with a Democratic Congress—Trump would make a total of 138 shadow docket applications.
There are two obvious reasons the shadow docket is being used so excessively. The first is that the Supreme Court cannot handle its caseload anymore, and is using this as a shortcut. The second is that the process is particularly ripe for use and abuse when you have a president who is impatient and doesn't want to wait for processes to play out the normal way, along with a Supreme Court that is extremely partisan and wants to protect itself from political blowback as much as is possible.
We wrote in the item last week that it could not be clearer that reform is needed and that, in particular, a new court (e.g., a Constitutional Court) should be created to handle certain kinds of cases, and to reduce the SCOTUS caseload. There is nothing we've written here that causes us to rethink that conclusion. (Z)