Supreme Court shadow docket decisions could affect millions

Court has used truncated process to rule on COVID-19, immigration and abortion

WASHINGTON — Traditionally, the process of getting an opinion from the U.S. Supreme Court takes months, and those rulings are often narrowly tailored. Emergency orders, especially during the court’s summer break, revolve around specific issues, like individual death penalty cases.

But that pattern has changed in recent years with decisions coming outside the court’s normal procedures. That has been especially true in the past two weeks.

Since Aug. 24, that truncated process known as the shadow docket has moved at astronomical speed, producing decisions related to immigration, COVID-19 and evictions and, most recently, abortion. Those three decisions, with the conservative wing of the court in the majority, have the potential to affect millions of people, in a fraction of the time and outside the normal scrutiny signed opinions can bring.

“My memory is, typically, if the Supreme Court was acting in July and August, it was really that quintessential emergency appeal, dealing with something like a death penalty situation. It wasn’t like: What is immigration law going to be in our country? It wasn’t: Will tenants have certain rights? It wasn’t the big substantive questions,” said Jessica Levinson, a professor at Loyola Law School.

In the normal process, participants petition the court to hear cases. If accepted, there are oral arguments before the justices, although during the coronavirus era, that has meant via telephone. Before this happens, a case usually has gone through a full review and appeal in lower courts. Those deliberations are part of the material the justices reference. Amicus briefs are submitted by parties interested in the case.

Once the arguments are heard the judges meet in conference, discuss the cases and take preliminary votes. Opinions are assigned to be written and draft opinions are exchanged and often amended and changed.

The overall process is deliberative and one where the justices justify their conclusions in somewhat lengthy written legal opinions. The process between oral argument and issued opinion takes months.

The shadow docket, a phrase coined by University of Chicago Law School professor William Baude, skips many if not all of those steps. The biggest element: It does not possess the transparency and disclosure of a typical docket.

Outside of a flurry of court filings between the plaintiffs and defendants in the three recent, prominent cases, there was little interaction between the court and the participants.

None of the orders issued by the majority in the three cases was signed, although at least one of them ended the protection for roughly 3.5 million people in the United States who said they faced evictions in the next two months, according to Census Bureau data from early August.

Some of the justices have voiced their disdain for the abbreviated process, including Chief Justice John Roberts and Justice Elena Kagan.