Reflection: The Shadow Docket
Marbury v. Madison invites the question, what reasoning is truly operative to a legal decision? The Supreme Court was tasked with a relatively narrow issue in that case, but Justice Marshall used the dispute as an opportunity to articulate the Constitution’s supremacy and cement the power of judicial review. While these are bedrock principles, their fundamental nature and perhaps inexorable articulation by the Court do not obviate questions about the rigor of Marshall’s reasoning. In short, some could read Marbury as a bit of a power grab—a necessary, likely now-uncontroversial one—but still an assertion of the Court’s authority where it may not have been strictly necessary.
So far in law school, my encounters with constitutional law have focused on doctrine: on the substantive over the procedural. But substance and procedure are inextricable, and despite the understandable emphasis on legal theory, we have probably all run up against cases that pose real questions about procedural rigor. At minimum, we have likely noticed the Court’s vicissitudes on hot-button social issues which, in themselves, elicit questions about the rigor of the court’s reasoning and in turn, thoughts about whether the Court overlooked or unnecessarily focused on procedural anomalies out of its desire to reach or avoid a certain conclusion.
These questions came to interest me last year, when I wrote an article about Virginia’s voter suppression case. The case was argued in the Fourth Circuit. Ultimately, an injunction which had been upheld by the Fourth Circuit was summarily stayed without explanation by the Supreme Court. It seemed odd to me that the Court provided no opinion. It also seemed odd to me that there were no amicus briefs filed in opposition to the stay. Then again, none of the articles I read about the case suggested that the Supreme Court had violated some sort of rule in summarily granting the stay. Other writers expressed disappointment and outrage over the outcome, not the methodology.
Enter The Shadow Docket, by Stephen Vladeck. My sister recommended the book to me this summer, saying it changed the way she thought about the law. Vladeck helps the lay reader become literate in Supreme Court procedure and the book is certainly a must-read for the law student who dreams of institutional reform. The book chronicles the expansion and refinement of the Supreme Court’s power and jurisdiction, revealing that it would be a mistake to conflate the Court’s putative insulation from politics with institutional stillness. Vladeck explains how Congress, spurred in large part by the enterprising Chief Justice Taft, set the Court on a path to consolidate authority and more efficiently advance its own agenda.
The shadow docket refers to the Supreme Court’s non-merits docket, consisting of procedural decisions. As Vladeck explains, the shadow docket is not new, but it has risen to the fore in recent decades, particularly as a vehicle for advancing the Trump administration's agenda. To comprehend the contemporary Supreme Court is to comprehend the shadow docket. Grants of certiorari, emergency stays, and the Court’s esoteric practice of plucking a case from the district court before the circuit has ruled all fall within the shadow docket. I realized reading the book that the stay in the Virginia voter case was decided on the shadow docket. And, I now suspect that there may have been a strategic reason for not filing amicus briefs—perhaps the plaintiffs wished to avoid the Court’s scrutiny, as I have learned that sometimes parties neglect to file briefs for certiorari petitions that they hope will be rejected.
My objective is to recommend the book, not give it away, but I will say that the scope, impact, and recent expansion of the shadow docket were, to me, a bit stunning. For instance, the Supreme Court originally had no choice over which cases it heard. Nowadays, not only does it effectively have complete control over which cases it hears, it can decide which legal questions it certifies—and sometimes it writes its own questions in the grant of certiorari. Furthermore, its unsigned, often very sparse orders (i.e. a single sentence denying cert. or granting a stay), are supposedly precedential. Vladeck traces gerrymandering cases to show that a shadow docket order has been given the weight of a precedent by the Court, but that the justices have molded it to their political agenda such that they have gutted doctrinal meaning behind the order. While Justice Alito publicly denies that the shadow docket has any binding effect, Vladeck demonstrates how its rulings tee up merits rulings and over time, can have the effect of merits rulings. While Vladeck discusses the insidiousness of this phenomenon, particularly under Trump, he also points out that shadow docket rulings allowed the legalization of gay marriage in many states far before Obergefell was decided. By and large, though, shadow docket rulings favor conservative agendas and where discernible, appear to fall along party lines.
Vladeck makes the case that the shadow docket undermines the Court’s legitimacy for a variety of reasons, but particularly because it obfuscates the Court’s reasoning. He contends that since the Court lacks enforcement power, its legitimacy in the eyes of the American people is crucial to its authority. I agree that the Court undermines its own credibility by its prolific use of the shadow docket. However, I fear that the Court is sufficiently entrenched not to be concerned about its own legitimacy such that these self-preservation-oriented arguments will spur change from within. Vladeck points to some evidence suggesting that criticism of the shadow docket has curbed the Court’s behavior, but also adduces evidence that the shadow docket continues to play a prominent role in the conservative majority’s agenda. I found Vladeck’s detailed analysis of the Court’s behavior more compelling than the broader argument about imperiled legitimacy.
What I do take away from the book, in addition to a series of ideas for future articles, is the power of the swing vote. At the end of the book, Vladeck dedicates a short discussion to Chief Justice John Roberts. Earlier in his tenure, Roberts was not the deciding vote (in merits cases or otherwise): Kennedy was. In Kennedy’s absence, Roberts has now emerged as the sole conservative justice willing to vote against shadow docket rulings that align with his political views. Vladeck makes the case that Roberts is unwilling to fully cross the line to advancing the conservative agenda at the expense of procedural integrity. I find this both sobering and heartening, and I cannot help but think about my generation of law students. It can be difficult, reading Supreme Court cases, to feel that procedural stringency has any value when the Court seems so ideologically driven. But we can’t give up on it. My hope is that as a class, wherever we find ourselves in the future, we will resist the urge to sublimate procedure to policy agenda.
