Shadow docket

At 6:00 pm CST on February 11, 2021, a man named Willie Smith was scheduled to be executed by the state of Alabama for the 1991 murder of Sharma Ruth Johnson. Less than 24 hours before this time, the U.S. Court of Appeals for the Eleventh Circuit ordered the state of Alabama not to execute Smith "unless it allows Smith’s outside spiritual advisor, Pastor Robert Paul Wiley, Jr., into the execution chamber". Citing "security reasons", the state of Alabama refuses to allow any non-prison staff in the execution chamber and has stated that it will not execute Smith because of the Eleventh Circuit's order. On the morning of February 11, Alabama filed an emergency application with the Supreme Court of the United States, asking it to vacate the Eleventh Circuit's injunction of execution immediately so that the execution may proceed as originally planned. A few hours later, the Court denied the application, and Smith was not executed.

This case, called Dunn v. Smith (2021), is an example of a case on the U.S. Supreme Court's so-called shadow docket. The ordinary process for seeking review from the Supreme Court is by petitioning the Court for a writ of certiorari, one of a few special kinds of writs descended from the common law-era prerogative writs, about which I wrote a blog post in August 2020. The shadow docket exists outside of this usual process. The phrase shadow docket is not an official term used by the Court. It was first coined in 2015 to describe a feature of the Court that has existed for decades.

In order to seek review on the shadow docket, a party to a federal lawsuit sends an individual justice an application to review a lower court decision on an emergency basis. Rule 22 of the Supreme Court's Rules determines the procedure for this kind of review, and the rule's wording is frankly quite vague and difficult for lay observers like me to understand. It seems to me that an individual Supreme Court justice is sometimes authorized to grant certain kinds of applications unilaterally, but the rule does not clearly address the specific kinds of relief that the law permits individual justices to grant. It also states that "A Justice to whom an application for a stay or for bail is submitted may refer it to the Court for determination." In Dunn v. Smith, the issue at hand was an application to vacate the Eleventh Circuit's injunction of execution. Although this is not an "application for a stay or for bail", the Court's decision notes that the individual justice to whom the application was addressed, Justice Thomas, referred the application to the broader Court for determination anyway. It is not clear to me whether Thomas could have unilaterally granted the application if he so wanted or whether Thomas was compelled to refer the case to the Court in order to even consider granting the application.

According to an article published in the ABA Journal by the American Bar Association in August 2020, the shadow docket is increasingly becoming an area for strife on the Court. The article quotes Stephen I. Vladeck, a law professor at the University of Texas at Austin, who stated that over the past few years, the Court has increasingly used the shadow docket to make significant and often controversial decisions. According to the article, the Court "had decided 11 shadow docket matters by a 5–4 vote" as of August 2020 that term, which is "almost equaling the dozen 5–4 decisions among the 53 decisions stemming from argued cases this term".

The increased usage of the shadow docket to decide controversial matters of law is troubling to me as an observer of the Court. I have historically regarded the judicial branch as my favorite branch of government because of its strong deference to reason and precedent over emotion and petty politics: if you are curious why a court decided a case a certain way, you can in general rest assured that the court will have explained the reasons underlying their decision in detail in the form of a judicial opinion. The shadow docket threatens to alter this usual deference to reason because the Court is not compelled to provide reasons for decisions made in shadow docket cases. This is by design: disputes that come before the Court on the shadow docket are by definition considered emergency matters that require a swift resolution. If the Court were required to write a thorough opinion for every shadow docket case, it would create a backlog that would produce unacceptable delays for those time-sensitive legal issues. However, you can imagine the difficulty and uncertainty this may create for the lower courts who have had their decisions overturned without an explicit reason from the Court as to why.

In Dunn v. Smith, despite not being required to, some members of the Court decided to explain their reasoning anyway. Justice Kagan wrote an opinion that was joined by three other members of the Court (Justices Breyer, Sotomayor, and Barrett) that explained some of her reasons for denying Alabama's application to vacate the injunction. On the other side of the proverbial aisle, Justice Kavanaugh wrote a dissenting opinion that was joined by Chief Justice Roberts, disagreeing with the majority's denial of Alabama's application and explaining why. Justice Thomas decided to indicate merely that he "would grant the application" but gave no further explanation of his reasoning. If you count the opinions written in the case, you'll find that they don't add up to a majority on either side: Kagan, Breyer, Sotomayor, and Barrett make four that would deny the application, whereas Kavanaugh, Roberts, and Thomas make three that would grant the application. The names of the two remaining justices, Alito and Gorsuch, make no appearance whatsoever in the Court's decision. Because a majority of five justices is required for the Court to deliver a judgment, at least one of either Justice Alito or Justice Gorsuch must have also agreed to deny the application. Due to the nature of the shadow docket, we do not know which justice cast the deciding vote, nor do we have any inkling of the reasons why that justice decided to vote the way they did.

To state merely that the Supreme Court has "a lot" of power would be an understatement. The judicial branch of government bears the sole responsibility of determining what the law is (in contrast, the legislative branch is responsible for determining what the law should be), and as the highest court in the United States federal judiciary, the Supreme Court has the power to effect revolutionary changes, from school desegregation to same-sex marriage. What stops the Supreme Court from just deciding cases willy-nilly, based on the personal political opinions of the individual justices? Part of the answer is the Court's transparency: we expect the Court at minimum to explain the reasons for their decisions that we can then analyze and discuss. The Court's increasing use of the shadow docket to decide controversial questions of law endangers this expectation of transparency, and I fear that it will lead to further politicization of the Court in the eyes of the public.