The Law-Breaking Supreme Court: On Stephen Vladeck’s “The Shadow Docket”

THE RULE OF LAW means, at its core, that those who govern may not simply issue decrees. Their actions must be based on reasons that are publicly known. Power must explain itself. So, it should be big news when courts break their own rules. As one Supreme Court opinion explained in Planned Parenthood v. Casey (1992), “the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”

But the laws that bind courts are rules of procedure, which are notoriously technical and complex. If courts abuse their power, how are ordinary citizens to know that this is happening?

Stephen Vladeck’s new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, is important because it explains those rules clearly, and shows that the court—particularly since Amy Coney Barrett joined it and cemented its right-wing majority—has been defying them, often in partisan ways that benefit Republicans. A large part of the court’s business consists of unexplained orders—what has been called the “shadow docket” of decisions. For a long time, the power to issue such orders was unexceptionable and necessary. And until recently, the court deployed that power with care and restraint.

A provision in the judicial code, first enacted in 1789, authorizes the Supreme Court to issue emergency injunctions in cases where the lower courts, which inevitably are more familiar with the facts of the cases before them, have refused to do so. Such orders are often issued without explanation. Cognizant of the danger of uninformed meddling, Justice Potter Stewart declared in 1968 that this power should be utilized “sparingly and only in the most critical and exigent circumstances.” Justice William Rehnquist observed in 1972 that the right to emergency relief has to be “indisputably clear.” In 1986, Justice Antonin Scalia cited both of these passages with approval. Likewise, in 2001, the full court held that such an order “is appropriate only if the legal rights at issue are indisputably clear.”

Yet lately, this power has been deployed frequently, aggressively, and in ways that make the judges look like Republican Party apparatchiks.

Sometimes the court issued shadow docket orders to reverse lower-court injunctions that had, correctly as it later turned out, blocked illegal government action, including the military ban on transgender members, a rule punishing immigrants who needed publicly funded medical care, new limits on asylum for refugees, and a ban on abortions for minors in immigration detention. “Over and over throughout the Trump administration, policies that no court ever upheld (and that multiple lower-court judges had held to be unlawful) were allowed to remain in effect for years thanks to one-sentence orders from the Court,” writes Vladeck. Some of the actions that the court put back into place, Vladeck reports, “would eventually be deemed unlawful by every court that actually ruled on their merits.” This pattern of deference to presidential prerogatives abruptly stopped after Joseph Biden’s inauguration.

Even though a challenge was filed the day Alabama issued its 2022 electoral map in response to the latest census, and the challengers persuaded the district court that the map was drawn with racist intent, the court declared that it was already too close to the election for a district court to stop it. That meant, Vladeck observes, that “every state would get one free election cycle using unlawful district maps every ten years.” But the court also, at the behest of the Republican National Committee, blocked a Wisconsin map that would have created a new majority-Black district, and intervened to block mail-in ballots in that state the day before an election. In sum, “the election cases appeared to be almost homogeneously partisan, with conservative justices voting in favor of whatever position supported the political power of Republicans.”

Death penalty cases likewise skewed in suspicious ways. In a pair of 2019 decisions, a state was first permitted to allow Christian but not Muslim chaplains in the execution chamber, and then eight weeks later the court ruled for a Buddhist in a similar case, weirdly mirroring the anti-Muslim animus of the Trumpified Republican Party. The court rushed the execution of Dustin Higgs, who died January 16, 2021, even though his arguments were scheduled to be heard in the Court of Appeals on January 22. What was the emergency that justified vacating his stay of execution? The court didn’t say. But it is hard not to notice that Biden, who opposes the death penalty and might have commuted the sentence, was about to be sworn in. That is, the danger was that an elected official would exercise his undisputed authority in a way the judges didn’t like. So, writes Vladeck, the court “invented a brand-new shadow docket procedure to allow the Trump administration to execute one last prisoner on its way out the door, all while ignoring the limits that its own rules supposedly imposed on such relief.”

The list goes on. As Vladeck writes, “It’s difficult to dismiss as coincidence that the Court’s interventions in immigration cases, for example, generally allowed President Donald Trump’s policies to go into effect and generally blocked President Joe Biden’s policies.” Yet when Texas devised a novel scheme that made it impossible to exercise the right to abortion, which at that time was still constitutionally protected, the court “hid behind procedural questions.”

During the COVID-19 crisis, crowded churches sometimes became vectors for spreading disease. Many states imposed restrictions on religious gatherings. As soon as Barrett joined the court, it started blocking those restrictions—once more, in cases where courts had not yet taken evidence. It invoked new, previously unheard-of rules. (See my article “The Increasingly Dangerous Variants of the ‘Most-Favored-Nation’ Theory of Religious Liberty” in the Iowa Law Review.) Rights can’t be “indisputably clear” when the court just made them up and the facts are disputed. Chief Justice John Roberts’s dissents from decisions that he likely found politically congenial show that the objection to the court’s misbehavior is based on more than political disagreement.

Vladeck concludes that the court’s new use of its injunction power is “indefensibly lawless.” In these cases, there has been no trial and no opportunity to develop an evidentiary record. The court reproaches lower courts for failing to heed its earlier orders—orders issued without any opinions explaining them, which makes them hard to heed. Justice Elena Kagan observed that henceforth “officials must guess which restrictions this Court will choose to strike down.” Vladeck writes that the Court was “[o]blivious to the irony of complaining about a lower court’s failure to apply an analytical framework that the Court itself had never articulated.”

The purportedly religious resistance to efforts to contain the coronavirus (resistance which itself followed curiously partisan patterns) finally became too much for the court when it was presented with vaccine-refusing healthcare workers. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch wanted to let those workers go back to their jobs in hospitals and nursing homes. Justices Barrett and Brett Kavanaugh disagreed, noting that the emergency power involved “a discretionary judgment about whether the Court should grant review in the case,” which would force the court to make a preliminary judgment on the merits “on a short fuse without benefit of full briefing and oral argument.” That was of course true of all the earlier orders they had both supported.

Vladeck thinks that their hesitation might have been “a tacit concession that they had exercised that discretion a bit too permissively over the previous eleven months.” But there is a more disturbing possibility: what restrained them was precisely their view of the merits. Vaccine refusal was by far the most extreme religious liberty claim the court heard, threatening to expose already frail and sick patients to COVID-19. Gorsuch made the astounding claim that preventing contagious, deadly diseases is not a sufficiently compelling interest to justify burdens on religious dissenters. He also proposed that, because some people have been excused from vaccination for medical reasons—a tiny number have life-threatening allergic reactions—“the most narrowly tailored means” to achieve herd immunity “is to re­strict vaccine exemptions to a particular number divided in a nondiscriminatory manner between medical and religious objectors.” Faced with people whom no ethical doctor would vaccinate, Gorsuch thinks that the fair solution is to force vaccines on them in order to make room for the religious. That wouldn’t even contain disease: religious vaccine resistors tend to be geographically clustered, to spread the disease among themselves, and so to present far greater risks than those with medical excuses. (I explain all this in detail in my ILR article, cited above.)

It would be nice if we knew that Barrett and Kavanaugh reject Gorsuch’s position. But if that’s what stopped them from joining him, then Vladeck is too optimistic in suggesting that the court was (is?) beginning to respect the legal limits on its power. They just happened to decide, in this case, to exercise their unconstrained power in a different way. Vladeck notes: “As for what would govern that discretion going forward, the Court’s two newest justices wouldn’t say.”

Why does the court have such broad powers at all? Vladeck begins the book by explaining how, over many decades, Congress gave the Supreme Court increasing control over its docket. Today it has full autonomy.

Vladeck could say more than he does about why this discretionary control over its agenda makes sense. Justice Joseph Story explained in 1816 the core function of the Supreme Court:

Judges of equal learning and integrity in different States might differently interpret a statute or a treaty of the United States, or even the Constitution itself; if there were no revising authority to control these jarring and discordant judgments and harmonize them into uniformity, the laws, the treaties, and the Constitution of the United States would be different in different States, and might perhaps never have precisely the same construction, obligation, or efficacy in any two States. The public mischiefs that would attend such a State of things would be truly deplorable.

For a long time, the rules laid down by Congress described in detail which cases the court must and may not hear. By the 20th century, the court faced a flood of appeals and developed tools for managing its docket. It demanded jurisdictional statements in support of petitions for appellate review, aimed at persuading the court that the appeal presented a substantial federal question. Only then would the court invite fuller briefing and argument. If petitions did not meet the “substantial” question threshold, the court would affirm or reverse them summarily—rulings that had weight as precedent in the lower federal courts, even though they had not been briefed or argued. That created ill-reasoned law, as when it declared in Baker v. Nelson (1971) that same-sex marriage did not create a substantial federal question.

Today, Congress has given it much broader discretion. The court’s announced standards for agreeing to hear a case (you can look up Supreme Court Rule 10) generally line up with Story’s concerns: typically, to resolve “conflicts” on “important” questions about the meaning of federal law, including the Constitution, where importance is, as Vladeck observes, “left to the subjective determination of the justices.” This supervisory power wouldn’t mean much if the court couldn’t slap down flagrant error or outright defiance from the lower courts, which has sometimes happened. Thus the emergency injunction power.

The virtue of this arrangement is that, with respect to issues it declines to hear, the court makes no law at all. But Vladeck shows that the new shadow docket practice is in fact making new law, “through rulings that are unsigned and unexplained (or, at least, insufficiently explained).” “[T]hose rulings are objectively inconsistent in how they apply the same procedural standards,” he argues, “in ways that certainly appear to favor Republican policies (or litigants) over Democratic ones; and […] the justices themselves are now insisting that at least some of these inconsistent and insufficiently explained rulings have precedential effects.” All this amounts to “a full-blown institutional crisis.”

At the end of the book, Vladeck responds to efforts by Alito and Barrett to defend the court’s work. Some of Alito’s claims, such as that the shadow docket orders do not have the authority of precedent, are flatly untrue. Barrett told an audience in 2022 that you can see that the court is not results-oriented if you just “read the opinion.” Vladeck responds: “[I]t’s essential context to point out that, just two days later, she joined a 5–4 shadow docket ruling with no opinion for the public to read.”

We have a rogue Supreme Court. It disregards normal constraints on its power because it can. After the unseemly gamesmanship that led to the appointments of Gorsuch and Barrett, the new conservative majority should have looked for opportunities to, as Barrett said shortly after her confirmation, “convince you that this court is not comprised of a bunch of partisan hacks.” Instead, it has become perhaps the most politically extreme and partisan Supreme Court in American history.

The shadow docket is only part of that story. The dramatic decision to overrule abortion rights is only the tip of a very large iceberg of right-wing triumphalism. The court has been so sympathetic to a libertarian philosophy that appears nowhere in the Constitution that it has devised vague new rules that constrain the federal government’s capacity to address climate change or prevent the spread of COVID-19. It has devised inventive new ways to prevent Congress from guaranteeing voting rights. It deployed a distorted and dishonest pseudo-originalism to block gun control. It has given conservative Christians a broad license to defy laws they don’t like.

Vladeck is reticent about how to remedy this situation. Congress could rein in the court by imposing term limits, adding additional justices, or stripping the court of jurisdiction over some cases. All these measures are drastic and not normally to be considered, but our situation is extreme. None of that will happen without a political consensus that the judges have really become, in Barrett’s phrase, a bunch of partisan hacks. She and the other Republican appointees have inadvertently been working to build that consensus. The best way for them to keep the public from thinking that is to stop making it true. Vladeck is right that his narrative shows “the importance of involving and investing the public in understanding the technicalities of legal process itself.”

Lawyers sometimes irritate other people with their persnicketiness about technicalities (as I’ve previously noted for The Hill). But scrupulousness about legal detail is what gives courts their authority. This Supreme Court feels free to issue orders to public officials based on gut feelings, undisturbed by exposure to evidence. Its lack of authority means that it is not merely misinterpreting the law. It is breaking it.

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Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022). Follow him on Twitter @AndrewKoppelman.