The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic
(Basic, $30)
title sounds more like a thriller than a legal treatise,” said Nina Totenberg in NPR .com. But Stephen Vladeck’s unlikely new best-seller focuses on a facet of the U.S. Supreme Court’s work “that until six or seven years ago was viewed as pretty boring.” Since its inception, the court has issued unsigned orders that block lower-court rulings, such as when it temporarily stays executions. But the court’s use of its so-called shadow docket has recently expanded dramatically. After the previous two presidential administrations requested only eight emergency stays across 16 years, President Trump’s administration asked for 41 in four years, and enjoyed at least partial success 28 times. The court heard no oral arguments and issued no written statements in these cases, but the stays allowed Trump to continue enforcing policies that lower courts found unlawful.
Vladeck’s research “shows how right-wing justices have abused the court’s emergency powers,” and not just by siding with Trump, said Ed Pilkington in The Guardian. Many shadow-docket orders with broad impact have been issued since Amy Coney Barrett joined the court in 2020, and the rush of such unsigned, unexplained rulings is not accidental. Chief Justice John Roberts has sided with the court’s three liberal justices in resisting aggressive use of the shadow docket, but Barrett tipped the balance. She and her allies “profoundly changed the law of the land” when they blocked state Covid restrictions that had limited the size of church gatherings. Other shadow-docket rulings “have had nationwide impact over some of the most hotly disputed areas of public life, from abortion to immigration.”
While reading the most convoluted passages of Vladeck’s legal exposition, “my eyes were watering,” said Jennifer Szalai in The New York Times. But the University of Texas legal scholar mostly writes in clear, plain English, and proves to be “a conscientious guide” to a disturbing, anti-democratic trend in American jurisprudence.