UT Law Professor Illuminates the Dangers of The Shadow Docket

UT-Austin law professor Stephen Vladeck is quick to point out that every public poll shows public confidence in the Supreme Court eroding.

But it's unlikely that most people polled in the last year were even aware of one of the most alarming shifts in the court's history: Since 2017, there has been an unprecedented increase in Supreme Court decisions issued in the middle of the night, without explanation or a breakdown of how each justice voted. In his latest book, New York Times bestseller The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, Vladeck aims a searchlight on this dark current chapter in the court's history.

The most infamous Supreme Court decisions in recent memory at least followed thorough briefings and oral arguments, and justices explained their positions with detailed written opinions. That's because those cases were on the regular merits docket. The emergency docket, dubbed the "shadow docket" for its secrecy, requires no such briefing, oral argument, or explanation – and these decisions now account for almost 99% of the court's total decisions, Vladeck writes. Ominously, as the shadow docket has swelled, the court has also been issuing fewer decisions in cases that go through the full process than at any time since before the Civil War.

This reality seems to prod at the foundation of the court's power – its sound, publicly explained reasoning. "It's what separates judges from politicians. Politicians vote up or down, they don't write lengthy opinions," Vladeck says. But then, politicians can be voted out. "We give unelected judges all this power in exchange for the belief that they're going to act as judges."

So Vladeck, currently holder of the Charles Alan Wright Chair in Federal Courts, argues that reforming SCOTUS will mean addressing the lack of accountability that has allowed the court's new conservative majority to turn the once-boring shadow docket into a mechanism to pull American law to the right.

Very directly, two shadow docket decisions likely helped Republicans gain control of the U.S. House of Representatives this session. Though this month the court decided that Alabama's 2020 redistricting process violated the Voting Rights Act by diluting Black Alabamians' voting power, when the issue first appeared on the court's shadow docket in February 2022, they issued an emergency order with the opposite effect. That 5-4 decision guaranteed the gerrymandered maps would be used in the 2022 election cycle. Justice Elena Kagan wrote at the time, "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 and argument."

The 2022 Alabama decision had domino effects – a district court kept gerrymandered Georgia maps in use, citing the Supreme Court decision. SCOTUS also intervened to keep skewed Louisiana voting maps. Those two gerrymandering rulings could have determined which party would control as many as seven House seats, and possibly the House at large.

"We're talking about the problem the wrong way. There's a tendency on the part of the public to have every conversation about the Supreme Court center around whether we like or dislike a particular ruling," Vladeck says. But, he explains, institutional reform is critical. "Ambition for power is about maximizing short-term political advantage. Power is fleeting. Institutional responsibility is deeper and longer standing."

The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic

by Stephen Vladeck
Basic Books
352 pp.
$27