Month: August 2020

“The court’s ‘merits docket’ includes cases in which the justices first decide to grant review, take full briefing (including from outside parties), hold oral argument, and then deliver lengthy, signed opinions providing the court’s reasoning and resolving the case. In contrast, the ‘shadow docket‘ consists almost entirely of summary orders, usually only one sentence long. These orders tend to be based on far less participation from lawyers, far less briefing, and no oral argument. And, in almost every case, they offer virtually no insight into the justices’ reasoning…”

“Among other things, these rulings put the justices in the position of deciding weighty legal issues at a very early stage of litigation, in a context in which it is often unclear exactly what the relevant facts are and in which legal arguments have not been fully developed. The justices are fond of insisting that theirs is a ‘court of review, not first view,’ except, apparently, in these cases. In the process, these disputes consume significant time and energy at the expense of the court’s ‘merits’ cases, which dropped to their lowest total this term (with 52 cases) since … 1862. And in their impact, the justices’ rulings to date reveal three problematic trends: Republican federal and state government parties fare far better than their Democratic counterparts; the impact these orders have upon the public has disappeared from the legal analysis; and the justices are even more sharply partisan in these cases than in those that receive more attention.

But by far the most troubling feature of all of this is that it’s happening in the shadows. It’s not just that most of these orders are accompanied by no reasoning; it’s that they’re handed down at all hours of the day (including quite a few after midnight or on Friday afternoons), with little opportunity for public involvement or scrutiny.”