What is the Supreme Court Shadow Docket?

Aron Solomon

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Monday really wasn’t a gold star day in Supreme Court history. In a 5-4 decision, the Court took a big chunk out of the Voting Rights act by allowing Alabama to create an absurd gerrymander that will ensure future GOP election victories if it stands.

The case in issue is Merrill v. Mulligan and, aside from the decision itself, what is particularly troubling is that, once again, there are credible assertions that the Supreme Court is working its “shadow docket.”

The shadow docket is when the Supreme Court uses summary decisions (that was the case here) and emergency orders instead of following their normal procedures, involving full oral argument and the often lengthy discussion and decision process that follows.

While this term was coined by a law professor in 2015, it really became mainstream in 2020 - not only in people beginning to discuss it widely, but in the number of cases in which the Supreme Court used this tool. The shadow docket is more relevant today than ever because, as in yesterday’s decision, it allows the Court to act quicker on hot button issues, such as voting rights.

This Alabama voting right case is critically important. By blocking the creation of a second majority-Black congressional district before the 2022 midterms, the Court is practically ensuring electoral unfairness in a state that is 26.8% Black.

As NPR reported on Monday::

“Once again, the court's action came in an unsigned order, without full briefing or argument, though the court will eventually hear arguments in the case, either later this term or, more likely, next fall.”

Next fall is, of course, too late, as the Alabama primaries for the 2022 midterm are set for May.

Essentially, this is what the Supreme Court allowed last night allowed in their 5-4 vote:

Steve Nass/ Wikipedia Commons

What the Court did in Alabama was to gerrymander the state to the point where it has literally zero resemblance to the actual population.

As to the shadow docket issue itself, both Justice Kavanaugh and Justice Kagan both addressed it on Monday.

Justice Kagan wrote:

“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing or argument. Here, the District Court amplified established legal principles to an extensive evidentiary record. Its reasoning was careful - indeed, exhaustive - and justified in every respect.”

Kagan argues that the Supreme Court, in simply disagreeing with the District Court by saying that the law needs to change, does not only a disservice to that court, which “correctly applied this Court’s long standing voting rights precedent,” but, more importantly, “it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished - in violation of a law this Court once knew to buttress all of American democracy.”

And that’s exactly what using the shadow docket to reverse a gerrymandering case in favor of those doing the gerrymandering does.

Justice Kavanaugh replied that “The principal dissent’s catchy but worn-out rhetoric about the ‘shadow docket’ is similarly off target. The stay will allow this Court to decide the merits in an orderly fashion - after full briefing, oral argument, and out usual extensive internal deliberations - and ensure we do not have to decide the merits on the emergency docket. To reiterate: The Court’s stay order is not a decision on the merits.”

Decision on the merits or not, 2022 is a huge election year. With many predicting a Red Wave - or even a Red Tsunami - where there is even a perception that the highest court in the land is playing politics through something like a shadow docket, this has the potential to harm how democracy functions.

Charlie Cartwright, a Florida lawyer, points out something critically important about the shadow docket:

“Whether the Supreme Court actually has a shadow docket is far less important than a public perception that it does, as this can erode confidence in our courts and the law.”

What is really interesting about what transpired yesterday at the Supreme Court is that it was not a 6-3 decision along philosophical lines, but rather 5-4, with Chief Justice Roberts crossing the philosophical divide and siding with the liberal wing of the court.

In another sharp irony, this is the same Chief Justice Roberts who was a catalyst for another Alabama case eight years ago that itself took a serious chunk out of the bedrock voting rights principle. While his support yesterday is noteworthy, it functionally does nothing, as Alabama will suffer for at least one more election cycle from this absurd and likely illegal gerrymander.

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A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Today’s Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.


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