Bench Memos

Law & the Courts

The Supreme Court’s “Shadow” Docket — A Response to Professor Vladeck

The Supreme Court building in Washington, D.C., August 29, 2020 (Andrew Kelly/Reuters)

Last month, a House Subcommittee heard testimony from law professor Steven Vladeck criticizing the Supreme Court’s use of its so-called “shadow docket” to grant requests for emergency relief. Vladeck argued that the Court risks its legitimacy when it grants such requests (at least outside of the death-penalty context), because its orders happen faster, less predictably, and with less explanation than decisions on its usual merits docket.

Professor Vladeck’s criticisms suggest that the Court should allow important constitutional rights to be infringed — often for years — in order to decide cases at a more leisurely pace. That approach would be a mistake, both for the parties (who sometimes need emergency relief) and for the Court (which is sometimes duty-bound to provide it).

First, “shadow docket” is a fun term — it makes lawyer work sound like it belongs in a spy novel! — but it is actually somewhat misleading. “Shadow docket” was coined by Will Baude several years ago, and perhaps inadvertently makes it sound like something clandestine or nefarious is going on when the Supreme Court decides emergency motions. In truth, all courts sometimes need to deal with emergency cases on an urgent schedule and the Supreme Court is no exception. A better term might be to call it the “emergency” or “accelerated” docket. Lower federal courts essentially do the same thing all the time, deciding emergency motions very quickly and normal trials and motions more slowly. Courts having some emergency matters to decide is actually quite normal.

Second, whatever the label, by far the largest substantive component of this docket at the Supreme Court is emergency death-penalty appeals. So much so that the clerk who handles the docket — whose real title is the “emergency applications clerk” — is colloquially known as “the death clerk.” (Years ago, when Justice Sotomayor granted an emergency application to protect my clients the Little Sisters of the Poor from millions of dollars in illegal fines, the news came to me via a late-night New Year’s Eve call from the “death clerk.”)

Vladeck doesn’t seem to take issue with the use of emergency orders in death-penalty cases. Presumably this is because he recognizes that the Supreme Court often must decide those applications on an accelerated schedule because they really are emergencies, and failure to consider the application would risk depriving the relevant party of his rights, with no chance to remedy the matter later. In fact, Vladeck even offered the subcommittee suggestions to make such cases more frequent (namely, making it mandatory for the Court to hear them) and allow prisoners to start their challenges earlier.

By contrast, Professor Vladeck does not seem to think there is quite the same need for the Court to decide other cases involving ongoing deprivations of constitutional rights. Thus he criticizes the Court’s rulings, singling out the Court’s orders in recent religious-liberty cases. For example, in discussing the Court’s orders against California’s draconian indoor worship ban in South Bay II and Gish, Professor Vladeck laments that the decisions were made “entirely on the merits.” When criticizing the Court’s decisions in favor of synagogues and churches targeted by Governor Cuomo (with restrictions Governor Cuomo would later ask a federal court to enjoin!), \ Vladeck accuses the Court of “prematurely” and “unnecessarily” deciding constitutional questions.

Of course, to the people who regained their constitutional freedom to worship in synagogue or church, the relief hardly came too soon. In fact, until last November, most courts were allowing governments to restrict the constitutional right to worship without requiring any sort of evidence from the government to support the restriction. State and local governments were obviously probing to see how much the courts would let them get away with. California had gone so far as to make it illegal for even a single person to engage in worship inside a large cathedral. And Governor Cuomo’s COVID orders were later shown to have been the product of his political calculations, rather than “following the science” — so much so that Cuomo would later ask a federal court to enjoin the rules rather than attempt to present evidence in their defense. Perhaps deferring to representations of good faith offered by officials like Governor Cuomo is a poor way to decide First Amendment questions.

Nevertheless, Vladeck argues that there is an important benefit to waiting years for a decision: the slower timeline allows for more people (especially law professors, Court-watchers, and amicus parties) to preview, participate in, and react to the Court’s decisions. There is some truth to this point: Longer, slower timelines make it easier to organize panels, plan law-review articles, write previews, and file amicus briefs. As both a law professor and a practitioner, I sympathize with Vladeck — it is much easier to predict and participate in cases that take a year or two than cases than cases that take a week.

That said, it is not at all clear why it would be a good thing for the Supreme Court (or any other court) to withhold protection for constitutional rights that are actively being violated in order to achieve this more leisurely schedule. The court system has to deal with all of the conflicts that rightfully come before them — not just the ones that can be set at the most comfortable pace.

Nor is it right to say it is “all-but-impossible” for amicus parties to file briefs in emergency cases. My firm has done it six times in recent years, chiefly in death-penalty appeals and COVID cases. And just looking at the past year, amicus briefs in emergency cases have been filed on both sides of various emergency applications by, among others, law-professor groups, law-school clinics, liberal and conservative interest groups, and big firms such as Morrison Foerster, Sidley Austin, and Jones Day. In fact, there is usually about a week to put together an amicus brief related to an emergency application. Litigators can and do move quickly when they need to, and they do so daily in courts up and down the judicial system.

It is difficult to avoid the conclusion that Vladeck is discounting the possibility that the religion cases might really be emergencies. Thus while he sees last-minute capital punishment appeals as really belonging on the docket — and while he offered the subcommittee no criticism of the times the Court has used the emergency docket to protect abortion rights — he suggests that it is okay to leave extreme First Amendment–restrictive measures on the books for a year or more without SCOTUS intervention. As the Chief Justice put it, that reflects “insufficient appreciation or consideration of the interests at stake.” Vladeck or other law professors may not put the ability to attend worship very high in their own values rankings, but like it or not, the Constitution that the justices are sworn to uphold does. And of course millions of Americans do as well.

Mark Rienzi is President of the Becket Fund for Religious Liberty. He is also a visiting professor at Harvard Law School and a professor of law at the Catholic University of America, Columbus School of Law.

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