Attorneys and other experts Thursday detailed why the nation’s highest court was issuing rulings on emergency petitions more frequently, without disclosing why or how the court reached a decision.
WASHINGTON (CN) — Members of a House Judiciary subcommittee heard from a number of witnesses Thursday about the sweeping impact of unassigned decisions issued by the U.S. Supreme Court, often handed out with no explanations.
The court’s “shadow docket” — a descriptor given to unassigned rulings and orders taken by justices on emergency petitions that one lawmaker called “unnecessarily pejorative” during Thursday’s hearing — has recently been used with a higher rate of frequency.
The court used the docket to deny women mifepristone and misoprostol — drugs that induce early miscarriages in expectant mothers — by mail after the emergency petition sat for months. The court has used the shadow docket to change state-set Covid-19 restrictions for gatherings of religious groups and execute death row inmates without explanation.
According to Hank Johnson, a Georgia Democrat who leads the subcommittee of courts, intellectual property and the internet, the expansive use of this tool of anonymity was in part a reaction to increased requests for expedited relief from the federal government.
“Under the Trump administration, the Solicitor General sought five times the number of such emergency or extra-ordinary petitions than the George W. Bush and the Obama administrations combined,” Johnson said.
University of Texas School of Law Professor Stephen Vladeck testified Thursday that although the court’s docket for ruling on expedited petitions has always existed, its prominence has only grown because of the court’s aggressive action on those submissions.
While the Trump administration helped some of the uptick in the high court’s use of the shadow docket, he noted that its rulings have broader implications and are being used to change the status quo more frequently.
For example, during Justice Anthony Kennedy’s last term in October 2017, there were only two shadow docket rulings revoking four public dissents, Vladeck said. Over the next two terms there were 20.
No one thing really explains the shift of the court’s use of the shadow docket, Vladeck said, but rather a confluence of factors including the court’s makeup and the ascendency of an idiosyncratic view of when emergency relief is appropriate.
“Indeed, it’s no coincidence in my view that the brakes have truly come off since the reinterment of Justice Kennedy and the death of Justice Ginsburg,” Vladeck said.
Gabe Roth, executive director of the Supreme Court transparency group Fix the Court, told Courthouse News he did not agree with the court’s use of the shadow docket, to seemingly weigh the merits of a dispute.
“I think lower courts would benefit from more cases being adjudicated via regular order,” Roth wrote in an email. “Issues of national importance — whether religious exercise, election law or the death penalty — deserve to be fully briefed, not decided in the middle of the night.”
Roth wrote there would always be a reason for justices to rule quickly on a particular issue, but supported expanding the visibility behind the scenes for the court through shadow docket alterations. Vladeck some of those adjustments could be made to the timeline of cases in a specific category.
“I do think that there’s quite a lot of play in the joints of timelines… in how long parties have to appeal, in how the party that won below can slow things down, Vladeck said. “And I do think one of the reforms Congress can and should consider, to take pressure off of the shadow docket, would be identifying a particular class of cases, where those timelines ought to be significantly compressed.
“And those can include cases in which state or federal policies are subject to an injunction from a lower court, those can include capital cases where the parties really do have to move quickly.”
District of Columbia Solicitor General Loren AliKhan agreed that justices could easily transfer some issues on the court’s emergency docket to a merits-based calendar and supported the increase of judgeships for lower courts to help shave off cases from the Supreme Court’s docket.
“Yes, I think that there’s a lot of work out there talking about the delays that we’re seeing in federal courts and in courts of appeals due to the uptick in litigation and lack of resources,” AliKhan said. “So, I do think reprograming resources to the district courts or courts of appeals, whether in the form of judges or court personnel like law clerks would be very helpful.”