Even casual Supreme Court watchers understand that some of the court’s most important work these days is done on the shadow docket. Also known as the emergency docket, it refers to the relatively quick decisions made with little or no public reasoning from the justices — as opposed to the merits docket, where cases get full briefing and hearings, followed by explained decisions.
Of course, more important than what people call the non-merits docket is what the justices do on it — and the Roberts Court has been using it to expand President Donald Trump’s power in his second term.
But words matter. If they didn’t, Justice Brett Kavanaugh wouldn’t feel the need to argue for less potent terminology, as the Trump appointee did on Thursday at a judicial conference in Memphis. The New York Times reported that Kavanaugh said “interim docket” is a better term, because not all the cases are emergencies and the decisions aren’t necessarily the final word. “It’s not real catchy, so I’m not sure it’ll bloom, but that’s the term,” Bloomberg Law reported Kavanaugh as saying.
The justice’s use of the word “catchy” is a reminder that he’s been fighting the linguistic battle for years. In a 2022 voting rights case, Justice Elena Kagan wrote in a dissent that the majority’s action was “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 and argument.” Kavanaugh responded in his own opinion in that case that the Obama appointee’s “catchy but worn-out rhetoric about the ‘shadow docket’” was “off target.”
Kavanaugh is correct that not every shadow docket case is an emergency. Indeed, the Trump administration’s impetus for urgent high court intervention has frequently been that it wants to implement an executive policy or action immediately, but lower courts have found such policies or actions unlawful, or likely so, at preliminary stages of litigation. Instead of letting the appellate process play out in an orderly fashion, the Republican administration runs to the Republican-appointed Supreme Court majority for instant relief.
It’s also true that the high court’s orders in these cases aren’t always the final word. Formally, they can either upend or maintain the status quo while litigation proceeds in the lower courts. The “interim” label could technically be supported on that ground. But it certainly isn’t flexible enough to cover all the justices’ actions off the merits docket, such as when they deny execution stays in capital cases.
Even the court’s technically “interim” actions carry heavier consequences than the word can bear. When it comes to letting the administration fire officials, or deport people, or cut research funding (to name a few recent examples), those bells are hard to unring should the high court reach different conclusions months or years down the line.
Finally, it’s worth noting that Kavanaugh recently joined Justice Neil Gorsuch’s chiding of lower court judges for (in the Trump appointees’ view) defying the high court’s recent orders. Gorsuch wrote that that even when the justices weigh in on an interim basis, “it constitutes a precedent that commands respect in lower courts.” That led a district judge who was a target of that criticism to respond that he “simply did not understand that orders on the emergency docket were precedent.” That exchange reinforces the more important point that it matters more what the justices do on the shadow docket than what we call it. On that note, lower court judges have recently criticized the high court for failing to explain itself sufficiently. One judge this week responded to Gorsuch’s criticism by writing that “the Supreme Court’s recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved.” So at least from the perspective of the judges who must implement the law on a daily basis, the high court’s work can be opaque in ways that could even be called shadowy. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
Latest Post
Recommended
