The Supreme Court's increasing reliance on its "shadow docket" represents a significant departure from established judicial norms and a growing threat to the transparency and legitimacy of the Court. The recent post by Max Kennerly highlights a particularly concerning aspect of this trend: the use of the shadow docket to issue orders that lack a clear consensus among the justices. As Kennerly argues, if the Court cannot reach a consensus on an issue, then the resulting order should not be considered precedential.
The shadow docket, as detailed in numerous reports, allows the Court to issue emergency orders and summary decisions without the full briefing, oral arguments, and detailed written opinions that are the hallmarks of its traditional "merit docket." While the shadow docket has always been a part of the Court's operations, its use has exploded in recent years, particularly in politically charged cases. This has led to a situation where major policy decisions are being made in the dead of night, with little to no public scrutiny.
The lack of transparency is not the only problem. The shadow docket also allows the Court to avoid the difficult work of building consensus and providing a reasoned justification for its decisions. This is particularly problematic when the Court is divided, as it allows a narrow majority to impose its will without having to engage with the arguments of the dissenting justices. This not only undermines the collegial nature of the Court, but it also erodes public trust in the institution.
The solution to this problem is not to abolish the shadow docket entirely, as there will always be a need for the Court to act quickly in emergencies. However, the Court must be more judicious in its use of the shadow docket, and it must provide a clear and reasoned justification for its decisions. The American people deserve to know why the Court is making the decisions that it is, and they deserve to have confidence that those decisions are based on the rule of law, not on the political whims of a narrow majority.
