Vol. 33 No. 07 (November 2023) pp. 89-93THE SHADOW DOCKET: HOW THE SUPREME COURT USES STEALTH RULINGS TO AMASS POWER AND UNDERMINE THE REPUBLIC, Stephen Vladeck. New York, Basic Books, 2023. 352 pp. Hardcover $30. ISBN: 9781541602632.
Reviewed by Tobias T. Gibson. Department of Political Science. Westminster College (MO). Email: tobias.gibson@westminster-mo.edu.
Stephen Vladeck, the Charles Alan Wright Chair In Federal Courts at the University of Texas Law School, offers in The Shadow Docket what is among the best books about the Supreme Court I have read. This is a timely, well-written, important book. Vladeck’s goal for the book is a simple one: “… to demonstrate that the rise of the shadow docket risks doing serious long-term institutional harm to the Court—and, as such, the country” (p. 25). No small feat, but the goal is met and exceeded.
By the end of the preface and introduction, the reader will learn what type of actions the Supreme Court takes that constitute the “shadow docket;” that the make-up of the Court impacts the frequency of the shadow docket decisions; the breadth of the impact of this type of decision; and, interestingly, an example of how the use of the shadow docket changed the institution of the Supreme Court.
The term “shadow docket” was first used by William Baude (2015) to distinguish between the merits docket and the other, less public decisions made by the Court. Since then, the term has entered the mainstream, to the point that in 2021, Justice Samuel Alito spoke about the damage that the term had on the Court, arguing that the description suggests the justices have become a “dangerous cabal” (xii). Vladeck does not waver, though, and notes that since Baude’s article, the Supreme Court ramped up its use of these decisions, and often were in favor of then-President Trump’s controversial policy initiatives. This is an imperative moment in the book, as there is an institutional impact stemming from these decisions. Because the shadow docket decisions, unlike the merit docket cases, do not come with opinions in which the legal reasoning is explained, “the justices are not only failing to provide guidance to lower courts and government actors but also exacerbating charges of political partisanship” (xiii).
As most readers will know, one of the components of justiciability is whether or not the case is “ripe” for a Supreme Court decision. Importantly, this is a consideration for the justices when they are considering cert. Vladeck notes that this is not true—and indeed, is inverted—in shadow docket cases. Instead of a case that works its way through the judicial system, one type of shadow docket decision called “injunctions pending appeals,” instead “answer complicated (and in some cases, hypothetical) questions of statutory or constitutional law at the outset of litigation” (p. 18, my emphasis). Here, Vladeck is primarily focused on the sharp increase of these actions, especially after Justice Amy Coney Barrett took a seat on the Bench. I think it is important to note that this also undermines the constitutional provision that the Supreme Court decides cases and controversies.
At the heart of the book, Vladeck offers several important history lessons. Chapter one, “The Rise of Certiorari” recounts the Taft (both president and Chief Justice)-era efforts that led to the reforms allowing the justices to decide which cases they hear. This is important for two reasons. First, because the reasoning of these cert. decisions rarely make their way into the public eye, Vladeck’s position is that they constitute a portion of the shadow docket. Second, and more importantly, this chapter offers a history of the modern institution of the Supreme Court—and argues that Chief Justice Taft was at best disingenuous in his reasoning behind the reform effort.
In the second and third chapters, Vladeck offers a stronger look at how the Supreme Court’s use of the shadow docket impacted same-sex marriage and death penalty cases. For example, due to the 2014 cert. denials, “the Supreme Court’s summary, unsigned, and unexplained decisions to stay out of the marriage issue … directly legalized same-sex marriage in eleven states (p. 75).
Regarding death penalty cases, Vladeck notes the obvious impact that the Court’s national ban of the death penalty in Furman V. Georgia and the subsequent lift of that ban in Gregg v. Georgia had on national politics and policy. Less obvious, however, is the impact on the Court itself. Because the Gregg decision required extensive judicial oversight, the Court itself became the place for remedy of death row inmates seeking emergency relief. However, in 1980, the justices ended the formal summer recess, allowing the entire membership of the Supreme Court to be available to make those emergency decisions. Prior to 1980, the emergency relief was subject to hearings by an individual justice. Between 1980 and 2022, there were no hearings—and in something of an irony, “…by moving from in-chambers resolution of emergency applications to resolution by the full Court, the justices as a whole came to provide less process—and less reasoning—than individual justices had previously” (p. 107).
Chapters 4 through 7 focus on the rise of the shadow docket during the Trump administration, and the impact in the few years after Trump left office. While much of this explosion comes directly from the former president, Vladeck explains well the institutional changes to the Office of the Solicitor General and the Supreme Court itself. Chapter four begins with a discussion of the “travel ban,” eventually enacted through a series of executive orders. The travel ban, as (eventually) accepted by the majority of the justices, “set the tone” for the state of the shadow docket while Trump was in office (p. 137). Some of this was a rethinking by the justices about the role of judicial restraint—an idea that began during the Franklin Roosevelt administration related to statutory law, not executive orders. Importantly, this restraint historically was not used in questions related to individual rights—and the Court undermined both of these norms (p. 134). But, some of the retooling of the Court’s impact was the purposeful efforts of the Trump-era Solicitors General. In a nutshell, “… in just four years Trump’s solicitors general sought emergency relief from the Supreme Court a total of forty-one times—a more than twentyfold increase over Bush’s and Obama’s SGs combined” (p. 144). As noted above, Vladeck establishes earlier in the book the role that Justice Barrett played in the increased reliance of the shadow docket. Seemingly, so did the coronavirus pandemic. As the reader likely remembers, at the height of the pandemic concerns, communal spaces, including churches, were shuttered in many states. The Court’s conservative majority, in a series of shadow docket cases, overturned the actions of many states seeking to limit the spread of the concerning virus—but also altered the norms of precedent. In South Bay II, the Supreme Court explicitly required that “unsigned emergency orders… were to be given precedential effect by lower courts, despite a long-standing tradition to give them no such weight” (p. 186).
In chapter 6, Vladeck convincingly illustrates that the shadow docket decisions often favored partisan Republican interests—including elections. In chapter 7, Vladeck shows the impact of the shadow docket into the post-Trump era, including the importance of these decisions on policy areas including abortion. Most tellingly, he discusses some justices’ pushback against the phrase and subsequent perception of the Court and its use of this type of decision. Most importantly, perhaps, using a speech by Justice Barrett in which she asks the public to “read the opinion” before casting aspersions, Vladeck reinforces the overall point of his book: “…what if there’s no opinion to read? (p. 245).
The conclusion offers what may be the most important positions in the book. Here, Vladeck notes that the justices, and the Supreme Court as a whole, are increasingly removed from the public. In addition to the shadow docket, justices are increasingly giving speeches that are not recorded, nor are transcripts released. Further explaining the issue, Vladeck culminates with a discussion about the rule of law and the Court’s legitimacy. “If that legitimacy,” Vladeck notes, “turns upon the Court’s ability to explain itself, then the rise of the shadow docket is anathema to that understanding. The people can hardly be expected to acquiesce in decisions that they can’t possibly be expected to understand” (p. 277).
Going further, if the rule of law requires “generality, clarity, publicity, stability, and prospectivity of the norms that govern a society” (Waldron) Vladeck masterfully illustrates that the Supreme Court has undermined the rule of law via its use of the shadow docket in, arguably, every way. Certainly, the combination of no opinions to guide lower courts’ and the public’s behavior, coupled with the undermining of long-held practices subverts the requirements of clarity, publicity, and stability. The partisan nature of the recent decisions also undermined the generality tenet.
I have two small quibbles with this book, and both relate to Vladeck’s sources. In two areas that he substantively covers well, the strategic decision making of the justices (chapter 2) and the role of the Solicitor General (SG) at the Supreme Court (chapter 4), I wish he had more purposeful use of political science literature related to the strategic model of decision making; and the role of the SG and other “repeat players” at the Court. To be sure, Vladeck understands this. For example, he notes the wisdom of “savvy advocates and parties” who strategically time cert. petitions (p. 85). He has an entire chapter, “The Tenth Justice,” that discusses the role of the Office of the Solicitor General, its historical origins, and the impact of breaking from historical norms and expectations of the office under the Trump administration. But, I would have liked to see at least classic works by political scientists like Lee Epstein and Jack Knight, Kevin McGuire, Rebecca Solokar, and Richard Pacelle—and more recent works, as well.
Professor Vladeck pulls no punches, and this is a good thing. It would be difficult to overstate the importance of this book. This is true because in the wake of Dobbs, the public’s perception of the Supreme Court was already shaken. Coupled with the partisan use of the shadow docket, and the more recent ongoing ethically questionable travel support and other funds received by Justice Clarence Thomas (Murphy and Mierjeski) and Justice Samuel Alito (Elliott, Kaplan and Mierieski), the Supreme Court’s public legitimacy is waning badly. The Shadow Docket offers a course of action to begin to heal the institution of the Supreme Court. Which, in this institutionalist’s mind is a necessary corrective.
In The Shadow Docket, Professor Vladeck offers a rich history of the Supreme Court, discusses the internal strategic decision making of the justices, and provides a compelling argument about the impact of the shadow docket—on the legitimacy of the Court; the breadth of influence on many of the decisions; and on the dynamic on the justices themselves. This book should be of interest to many scholars who read LPBR, and to the students in the classes they teach.
CASES:
Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022)
Furman V. Georgia, 408 U.S. 238 (1972)
Gregg V. Georgia, 428 U.S. 153 (1976)
South Bay United Pentacostal Church V. Newsom, 141 S.Ct. 777 (2021)
REFERENCES:
Baude, William, “Foreword: The Supreme Court's Shadow Docket (January 6, 2015). 9 NYU Journal of Law & Liberty 1 (2015): 1-63.
Elliott, Justin, Joshua Kaplan, and Alex Mierjeski. June 20, 2023. “Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court,” https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court
Epstein, Lee and Jack Knight. 1997. The Choices Justices Make. Washington, DC: CQ Press.
McGuire, Kevin T. “Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success.” The Journal of Politics, vol. 57, no. 1, 1995, pp. 187–96.
Murphy, Brett and Alex Mierjeski. August 11, 2023. “Clarence Thomas’ 38 vacations: The billionaires who treated the justice to luxury travel.” USA Today, https://www.usatoday.com/story/news/2023/08/11/clarence-thomas-38-vacations-the-other-billionaires-who-have-treated-the-supreme-court-justice-to-lu/70565593007/
Pacelle, Richard. 2003. Between Law and Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation. College Station: Texas A&M University Press.
Salokar, Rebecca. 1994. The Solicitor General: The Politics of Law. Philadelphia: Temple University Press.
Waldron, Jeremy, "The Rule of Law", The Stanford Encyclopedia of Philosophy (Fall 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), forthcoming URL = https://plato.stanford.edu/archives/fall2023/entries/rule-of-law/.
© Copyright 2023 by author, Tobias T. Gibson.
