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With shadow docket, Supreme Court puts Band-Aids on a bullet hole

The justices are creating a new approach to solving urgent matters but it’s just the first battle in a longer war.  

WASHINGTON (CN) — In a year where several emergency argument sessions popped up on its calendar, it appears the Supreme Court is trying to answer calls for more transparency. Still murky, however, is how the high court will prevent its emergency docket from becoming a sounding board for every political grievance.

Over the last decade, the court’s emergency docket — sometimes called the shadow docket — has wielded more significance as highly consequential cases have been decided away from the court’s normal petition, argument and opinion process. Instead, litigants have asked the court to answer increasingly important matters on an expedited basis without the transparency of holding an argument session and taking time to construct a carefully worded opinion. 

The more the court has allowed litigants to skirt its normal proceedings, the more it has been asked to keep doing so. In turn, critics have taken note of how the court suddenly seems to be making more and more decisions in the shadows. So when two closely watched cases concerning contentious issues popped up on the emergency docket this term, the court made a shift. 

Not once, but twice, has the court agreed to hear expedited oral argument sessions on shadow docket cases this term. 

“I don't know whether they responded to criticism or whether they just are recognizing that they would benefit from more time and attention on these cases, but I do think that's clearly responding to the shortcomings of the emergency docket,” William Baude, a professor at the University of Chicago Law School who coined the term shadow docket, said in a phone call. “When they decide these cases in an emergency posture with no argument, they don't have very much time to talk about them, they don't have very much time to think about them, and now they're finding a way to create more time.” 

The high court initially denied relief to challengers of the most restrictive abortion ban in the country as they attempted to thwart Texas’ law. But in an about-face, the court then agreed to hear arguments in the case ultimately allowed the challenge to move forward on a very slim margin

Baude said this case demonstrates that this new approach makes a difference. 

“They gave an initial answer that was entirely in favor of the state, and then after argument, they gave an answer that was more of a mixed bag,” Baude said. “I think it's exactly an indication of how taking more time could matter.” 

But if the Texas case was supposed to stand as an example of how this new process could change the outcome of a case, it failed. When abortion providers asked the justices to force the Fifth Circuit to abide by the court’s ruling and move the case forward, the justices refused. That the majority also offered no explanation for their refusal only added to the confusion and brought opacity to how the decision was made. So with no more relief than they were offered when the court originally shot down their emergency request, it’s almost as if the argument session made no difference to the case’s outcome. 

Justice Sonia Sotomayor made this point in her dissent on the denial. 

“Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory,” the Obama appointee wrote. 

By not offering an explanation for their ruling, the majority opened the court back up to criticism that decisions made on the emergency docket lacked transparency and reasoning. 

“I think there's no doubt that many of these cases have highly ideological connotations and the court is eager to speedily resolve them in a way that favors conservative interests,” Blake Emerson, an assistant professor at UCLA Law, said in a phone call. “It's a problem because the court isn't really offering detailed opinions reasoning through to its conclusions, which is not only a problem for our understanding of what the court is up to, but even if you're sympathetic to the court's political agenda, it would be beneficial to have clear legal rules established rather than kind of loosely reasoned judgments, which we've seen a lot of recently.”

The court got another shot at its new process when it took on a pair of emergency challenges that concerned President Joe Biden’s vaccine or testing mandate for large businesses and vaccine mandate for federally funded hospitals. These cases didn’t offer up any sort of evidence for how the justices would rule with or without oral arguments, but they did prove that the justices aren’t scared to make potentially long-lasting precedents from shadow docket cases. The court’s majority took the opportunity to create a precedent that may be consequential for the administrative state for years to come. 

Emergency docket cases in the past haven't been big precedent makers, but that could change. 

“It's a bit early to say but that's my sense that these judgments, not only in the S.B. 8 and the OSHA case, also in the religious liberty area,” Emerson said, referring to the Texas abortion and vaccine mandate cases, respectively . “I mean, their review of state-level Covid restrictions and their restrictions on church gatherings seem to have significantly shifted precedent that smith around religious liberty and the way the courts treat those. People who are experts in the field seem to think that this is a lasting shift.” 

As more cases have mounted on the court’s emergency docket, they’ve also been forced to tackle controversial issues at a much greater speed than in the past. The justices had years to watch fights over the Affordable Care Act play out before they got involved but now they’re expected to gear up much sooner. 

“One of the new issues the court is confronting is sort of, why does it act in some emergencies and not others, and is it true that acting in an emergency is supposed to be something the court does really, really rarely,” Baude said. “It used to be that the court was much more likely to wait for these issues to bubble up several years before it got into it. It was several years before the court weighed in on, say, the Affordable Care Act, and now the court has to weigh in on these things much, much faster and that's a real change.” 

In a way, litigants and the American public are expecting the court to perform a role it wasn’t designed to do, leaving its future role in the democratic system unstable. 

“The court is just not set up to be able to rush into every major legal controversy that fast,” Baude said. “So I think they're going to have to find some way to triage and to figure out where they need to take more time or where they can act that fast, and I think we're still seeing them kind of feel their way through that.” 

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