What they do in the shadows: The Supreme Court’s increased use of the Orders List

Photo by swatjester on Flickr

Caleigh Harris, Associate Member, University of Cincinnati Law Review

I. Introduction

On September 1, 2021, the Supreme Court of the United States, in a 5-4 decision, upheld Texas Senate Bill 8 in Whole Woman’s Health v. Jackson—one of the most restrictive abortion bills in the country.[1] This decision did not mirror its predecessors; the landmark decision in Roe v. Wade took nearly six weeks to decide, whereas the majority in Whole Woman’s Health handed down an opinion in less than 72 hours and with a single paragraph of reasoning.[2]

Justice Kagan wrote in her dissent, “Today’s ruling illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process. . . [T]he majority’s decision is emblematic of too much of this Court’s shadow-docket decision making—which every day becomes more unreasoned, inconsistent, and impossible to defend.”[3]

Part II of this article will give a brief overview of the Supreme Court’s increased use of the shadow docket in comparison with its procedures for merits cases.  Furthermore, it will discuss two particularly controversial areas in which the Court has utilized its shadow docket: abortion and the death penalty. Part III analyzes the practicality of the shadow docket against the need for transparency in a democracy. Ultimately, Part IV will emphasize that it is inappropriate for the Supreme Court to use the shadow docket in this expansive manner and that it contradicts the values of democratic self-government.

II. Background

A. Merits Cases vs. Orders Lists

The term “shadow docket” was adopted by Professor William Baude and refers to the “orders and summary decisions that defy [sic] the Supreme Court’s normal procedural regularity.”[4] This practice (also known as the “orders list”) has been around since the Court’s inception.[5] Historically, the list has consisted of cases which grant or deny certiorari, emergency relief applications, time extensions for deadlines, or “other unremarkable scenarios.”[6] In contrast to merits cases, orders list decisions are not handed down after scrupulous review of case briefs, intense oral arguments, or months upon months of drafting and sharing opinions.

Merits cases follow a more transparent and regular procedure: the Court announces in advance what cases will be decided as well as how and when parties will be heard; the decision is explained in a full written opinion that averages around ten pages in length; and then each Justice will either sign off on the majority opinion, concur in some form, or dissent in some form.[7] The orders process stands in stark contrast to the process for merits opinions, as decisions are left unexplained and the public is in the dark as to who signed off on the opinion and why.[8]

There are practical arguments for the orders list—one cannot expect the justices to write a full opinion on why they denied certiorari for the 7,000 petitions the Court receives in a year, or the decision behind granting an extension for filing a brief. Furthermore, the orders list involves decisions that bypass the procedural regularity based on need—such as when the Court issues emergency injunctions and therefore does not have the time to deliberate in as much detail as the justices do with merits cases.[9]  Notwithstanding the practicality aspect, the frequency of such orders has increased drastically during the Trump Administration.[10] The Court, now heavy with Trump-appointees, continues to use the shadow docket to hand down politically poignant decisions.[11]

When justices use the shadow docket to decide hot topics that are the center of political debate, they are not only setting a precedent for lower courts to (blindly) follow, but they are also usurping values of democratic transparency. By doing so, the justices ostensibly are deciding that the American public does not deserve to know how each justice voted or the reasoning behind their vote.

B. Reproductive Rights

The Court’s decision in Whole Woman’s Health is the perfect example of the Court using its orders list for a merit-worthy case.[12] For nearly 30 years, Planned Parenthood v. Casey has been the controlling case on constitutional standards for abortion.[13] Oral arguments were held in late April, 1992, and the case wasn’t decided until the very end of June, 1992, with an opinion totaling 159 pages in length.[14] Conversely, the majority opinion in Whole Woman’s Health—which calls into question not only the standards set out in Casey, but also the constitutionality of abortion in general—is a single paragraph in length.[15] Justice Thomas is the only member of the Court who ruled in both Casey and Whole Woman’s Health.[16]

C. The Death Penalty

Another example of the controversial rulings from the shadow docket is the Court’s treatment of federal execution cases. During President Trump’s term, the Supreme Court overturned a lower court’s decision on a contested legal question in seven out of 13 scheduled federal executions.[17] As the Court granted emergency relief to the government in these death penalty cases, executions were allowed to go forward.[18] As a result, these individuals were executed while their litigation was pending, and the courts dismissed litigation as moot after their executions.[19]

III. Discussion

Before joining the Court, late Justice Ginsberg wrote, “disclosure of votes and opinion writers. . . serves to hold the individual judges accountable” and “puts the judges’ conscience and reputation on the line.”[20] Justices should be held to a higher level of accountability when the orders list is deciding cases that are literally life or death for the American people. American democracy places itself on a pedestal for transparency and self-government of the people, yet the Supreme Court is incredibly isolated from the people it serves. Justices are appointed by the president, confirmed by the senate, and spend the rest of their lives with their own version of Supreme Court “job security.” The Court is one of the most powerful institutions in the nation and, as demonstrated above, its decisions can cost people their lives. As such, the American people deserve the chance to know who signed off on a ruling and understand why they did so.

The recent shadow docket decision in Whole Woman’s Health has broad implications constitutionally, yet the public has absolutely no idea what reasoned logic supported the decision. Millions of people who had been relying on abortion as a constitutional right are now left with virtually no access to legal abortion and even face monetary sanctions if they obtain an abortion or help someone else obtain one.[21] No cogent argument was laid out explicitly overturning Planned Parenthood v. Casey, leaving lower courts in judicial limbo, wondering what legal framework to apply in abortion cases. Lower courts rely on precedent set by the Supreme Court, yet they face difficulty when no explanation or legal standard has been presented to them.[22] The result is a plethora of inconsistent decisions by the judiciary that to leave women and medical practitioners questioning what their futures hold whilst in this legal void.

Furthermore, as illustrated in the federal execution cases, the Court’s relief to the federal government is often at the individual’s expense—but this is not without prejudice. More than seven people lost their right to an appeal based on procedure and standing; not only that, but they lost their lives without having the ability to fully exhaust all legal avenues in their cases.[23] By finding the case moot after an execution, the Court is leaving lower courts without guidance on how to approach the intricate technicalities of death penalty cases.

Today’s Supreme Court is overextending its power by handing down shadow docket decisions on cases of this caliber. Federal executions, abortion rights, and other politically controversial topics are often at the forefront of voters’ minds. Yet, Americans do not get to vote for who sits on the Supreme Court. Instead, the future of their rights and lives are in the hands of justices who aren’t even signing their names to these decisions.

If left unchecked, there is no telling how far the current Court will take the shadow docket. It is imperative the legislative and executive branch pass legislation to hold the Justices accountable for merit-heavy cases that are being pushed into the orders list.[24] The shadow docket has its place in terms of practical, less-noteworthy cases, but democracy relies on leaders who are as invested in the consequences of their decisions as the voters who are bearing the brunt of those consequences. As it stands now, the Supreme Court is unchecked, unaccountable, and unapologetic about its recent decisions.

IV. Conclusion

Supreme Court decisions do not exist in a vacuum; each ruling handed down has the ability to leave lasting effects on the nation. The other two branches of government bear the responsibility of accountability and transparency, yet the Court’s shadow docket seemingly gives the institution an out when it comes to individual accountability.[25] The Court should provide transparency by publishing the votes on orders list cases and explanations for more “noteworthy” actions.[26] The orders list has its place, yet cases like those discussed in the previous sections demonstrate how the Court’s anonymity is antithetical to the values of democracy.


References

[1] Whole Woman’s Health v. Jackson, 2021 U.S. Lexis 3680 (2021).

[2] Roe v. Wade, 410 U.S. 113 (1973); Whole Woman’s Health at 11 (2021) (Kagan, J., dissenting)

[3] Id.

[4] William Baude, ARTICLE: Foreword: The Supreme Court’s Shadow Docket, 9 NYU J.L. & Liberty 1 (2015).

[5] Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, American Bar Association (Apr. 14, 2021), https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/.

[6] Id. See also Baude, supra note 4.

[7] Id. at 9-10.

[8] Id. at 11.

[9] Id. at 15-16. “The orders list, by contrast, often faces stronger time pressure. . . [S]ome cases involve external deadlines in the outside world – elections, executions, fire sales, etc. So it is not objectionable that the Court sometimes trade procedural regularity for speed.”

[10] O’Connell, supra note 5. Between 2001 and 2017, there were only eight applications for emergency relief filed by the Department of Justice. During the Trump Administration, 41 applications were filed.

[11] Id.

[12] Steve Vladeck, The Supreme Court doesn’t just abuse its shadow docket. It does so inconsistently, Washington Post (Sept. 3, 2021), https://www.washingtonpost.com/outlook/2021/09/03/shadow-docket-elena-kagan-abortion/.

[13] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[14] Id.

[15] Whole Woman’s Health v. Jackson, 2021 U.S. Lexis 3680 (2021).

[16] Id. See also Planned Parenthood, 505 U.S. (1992).

[17] Lee Kovarsky, Abortion, the death penalty, and the shadow docket, SCOTUSblog (Sept. 6, 2021), https://www.scotusblog.com/2021/09/abortion-the-death-penalty-and-the-shadow-docket/.

[18] Id.

[19] Id.

[20] Baude, supra note 4 (citing Ruth Bader Ginsberg, Remarks on Writing Separately, 65 Wash. L. Rev. 133, 140 (1990)).

[21] Claire Hansen, Supreme Court Order on Texas Abortion Ban Puts ‘Shadow Docket’ in the Spotlight, U.S. News (Sept. 3, 2021), https://www.usnews.com/news/national-news/articles/2021-09-03/supreme-court-order-on-texas-abortion-ban-puts-shadow-docket-in-the-spotlight.

[22] Baude, supra at 4. “But it is difficult for lower courts to follow the Supreme Court’s lead without an explanation of where they are being led.”

[23] Kovarsky, supra note 17.

[24] O’Connell, supra note 5.

[25] Id.

[26] Id. at 18.