Glenna Li
I. Introduction
“Shadow docket” cases enable the Supreme Court to hear time-sensitive cases that, if not promptly decided on, would significantly alter the status quo for parties involved. Its nebulous name derives from the frequent occurrence of shadow docket decisions being released late at night in the form of terse, one to two sentence summaries.1 Due to their urgent nature, shadow docket cases do not require the traditional legal procedures “merits docket” cases undergo, such as oral argument, full briefing by multiple parties, and lengthy, signed opinions. The Court has increased its volume of shadow docket cases in recent years, which has raised concern regarding the structure, impact, and processes of legal decision-making. This article will examine the following three aspects of the shadow docket: (1) the background of shadow docket cases and how their current usage has implications for the future; (2) a specific shadow docket case, Alabama Association of Realtors v. HHS; and (3) solutions to reshaping the usage and impact of shadow docket cases. The purpose of this article is to articulate that while shadow docket cases enable the Supreme Court to rule on a greater quantity of cases within short turnaround times, their ambiguous nature inhibits transparency and public access to legal reasoning. Alabama Association of Realtors v. HHS demonstrates how a Supreme Court, whose composition increasingly does not represent the American people, can unilaterally dispatch decisions that have far-reaching, irreversible effects disproportionately harming low-income and people of color’s health, well-being, and ability to engage in democratic accountability.
II. Shadow Docket Cases: Background and Current Dilemmas
Because shadow docket “applicant request[s] must meet certain criteria, including that the applicants would suffer ‘irreparable harm’ if it is not granted,” shadow docket cases inherently involve sensitive topics and can generate acute ramifications.2 An example of a prominent shadow docket case is Bush v. Gore (2000), in which the Supreme Court had one day to decide whether Florida could recount its votes for the 2000 Presidential Election between President Bush and Al Gore.3 The Court ultimately voted 7-2 to halt the recount, and Bush eventually won by a slim margin of 537 votes. Bush v. Gore underscores the Supreme Court’s immense power in determining how immediate issues of national importance should unfold. From cases related to elections, COVID-19 procedures, to impending executions, the shadow docket gives license to the altering of institutions and livelihoods overnight. Shadow docket cases display drawbacks that should be weighed with justifications for their usage. The irony of shadow docket decisions is that many fall among the Supreme Court’s most societally consequential holdings, yet their nebulous reasoning renders them difficult for the American people to understand them. Justice Kagan, in her dissent on a Texas Abortion shadow docket case, stated that “the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”4 Brief explanations for decisions, such as single paragraphs or a few sentences, are innately incomplete because they lack detailed support and do not comprehensively address legal counterpoints, which are essential to strengthening arguments. Moreover, the little transparency shadow docket cases provide is detrimental to democracy. A Supreme Court whose actions seem distant from the mass public can ignite public distrust of political institutions and erode the Court’s legitimacy. As these cases often concern politically charged topics, it is in the public’s interest to have access to decisions they have a personal stake in and that directly impact their lives.5 Furthermore, without written briefs and oral argument, amici do not have the opportunity to advance fully developed arguments. This constraint further facilitates the undemocratic nature of hearing shadow docket cases for two reasons. First, it gives outside parties less voice to offer their perspectives and gather evidence for arguments. Second, making decisions with half-formulated arguments and evidence can make justices prone to legal error. Another shortcoming is that shadow docket cases carry the same precedent as merit case rulings. This obliges lower courts to give the same weight to shadow docket rulings as merit rulings that have undergone a more thorough legal decision-making process. As a result, lower court usage of shadow docket precedent to guide their findings can alter future legal frameworks and have a profound national impact. This impact can be harmful because shadow docket cases are decided on the basis of narrow, pressing conditions that do not align with most cases undergoing a more intensive vetting process. Another dilemma is shadow docket cases are increasingly being taken up. Due to the pandemic, the Court assumed numerous shadow docket cases that required immediate action because of their potential impact on the legal landscape and parties involved, and postponed or removed merits cases from its argument calendar. 6 The Court has made this new balance of shadow and merits docket cases a norm, making it harder for conventional citizens to develop a clear perception of legal reasoning and decisions. Moreover, the pandemic is not the only reason why the Court has increased its shadow docket caseload. Presidential administrations have also used shadow docket cases to advance their ideological agendas. For example, Trump Administration lawyers filed manifold requests for the Supreme Court to take up shadow docket cases that would block lower court orders.7 In fact, during the Trump Administration, “the government filed shadow docket applications at 20 times the rate of each of the two previous eight-year administrations,” and the Court accepted the majority of these requests.8 The abundance of shadow docket cases taken up by the Supreme Court’s conservative majority during the Trump administration signals how the executive branch viewed the judicial branch as a political ally. Under the shadow docket, the Court has upheld Trump’s travel ban, trangender military troop ban, and transfer of military funds to finance his border wall. This is especially detrimental because the Court’s purpose is to confront constitutional issues without outside influence. Because the current Court and Trump Administration align politically, the Trump Administration used shadow docket cases as a tool to achieve political objectives. This contravenes the Court’s independence, as the Court is only allowing the interests and policies of a complementary group pass constitutional muster. Additionally, Trump Administration lawyers have claimed the Supreme Court is obliged to take these shadow docket cases to actively combat constitutional issues within the lower courts. But 8 do these cases indeed implicate constitutional issues that must be resolved right away? It is more democratic to establish a decision after having considered solid evidence (through written briefs) and that addresses various positions (through oral argument) than hastily coming to a precarious conclusion. Legal decisions must be carefully considered because of the explicit impact they have on people. The past couple of years have exemplified extenuating circumstances that justify the Court’s uptick in shadow docket cases, but this development can have lasting impacts on the future legal climate.
III. Alabama Association of Realtors v. HHS (2021)
Alabama Association of Realtors v. HHS is a shadow docket case that questioned whether the Centers for Disease Control (CDC) was entitled to enact a nationwide eviction moratorium under the the Public Health Service Act of 1944 as an independent agency. On August 26th, 2021, the Supreme Court affirmed the U.S. District Court for the District of Columbia’s decision to overturn the CDC’s moratorium, which prohibited evictions for “any tenants who live in a county that is experiencing substantial or high levels of COVID-19 transmission and who make certain declarations of financial need.”9 The CDC said evictions would “accelerate the spread of the virus” and that they had the right to authorize the eviction moratorium under Section 361(a) of the Public Health Service Act, which enables the CDC “[T]o make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases [interstate].” However, the majority declared this not to be the case, with Justice Kavanaugh stating that the CDC exceeded its statutory authority by issuing the moratorium. The majority 9 https://plus.lexis.com/document/?pdmfid=1530671&crid=5c597126-9c6b-4983-b517-82fe950dd555&pddocfullpath =%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A63G1-PDS1-DY33-B3PN-00000-00&pdcontentc omponentid=6443&pdteaserkey=&pdislpamode=false&pdworkfolderlocatorid=NOT_SAVED_IN_WORKFOLDE R&ecomp=gf4k&earg=sr0&prid=9bb5f3e5-83b2-4ede-9446-e47a6124a9bd 133 claimed that the moratorium intruded into an area under state jurisdiction by altering the landlord-tenant relationship. Therefore, only Congress has the ability to enact an eviction moratorium that would “significantly alter the balance between federal and state power and the power of the Government over private property.” Unlike other shadow docket cases, the Court was more thorough in its reasoning and released an eight-page opinion for this case. Nonetheless, Justice Breyer criticized the Court for being too rushed in its decision-making. For example, one of the factors the Court considered before making a decision was “where the public interest lies.” The Court recognized that although the moratorium may serve the public interest by combating the spread of the Delta variant, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” Therefore, because the moratorium was not enacted through lawful means, the outcome it achieves cannot hold. However, in his dissenting opinion, Justice Breyer argued that the Court’s decision to accept the case was a “second-guessing of the CDC’s judgment” and that further spreading of COVID-19 (which lifting the moratorium would facilitate) did not serve the public interest. In fact, a Duke study found that eviction-prevention policies reduced the pandemic death rate by 11%.10 Furthermore, Breyer’s dissent demonstrates his belief that taking up the case was unnecessary and irresponsible to the American people. He believes the public interest would be harmed if they did not heed the CDC’s judgment. Due to the nature of this case, Americans were prevented from having access to the Supreme Court’s full legal reasoning for its decision, inhibiting Court transparency. Even Justice Breyer professes that the Court should not have taken up a case carrying so much weight. According to The Eviction Lab at Princeton, the eviction moratorium prevented 1.55 million eviction filings and affected 3.7 million people, with people of color and low-income people. With millions of people being laid off, changing their careers, and choosing to stay home due to health and child care concerns, the eviction moratorium provided protection for many families’ most valuable asset: their house. Moreover, the eviction moratorium allowed people to maintain a semblance of normalcy in the midst of a pandemic. One’s home is where one cultivates familial, cultural, and social ties. With millions of people being let go of this reprieve, this decision does not appear to serve the public interest. The pandemic has not ended, and it is imperative that the government provides for people who are vulnerable to changes in the volatile labor and housing markets. In the context of the current political environment, the Court is surely aware that enacting an eviction moratorium through both houses of Congress would be exceedingly difficult. Furthermore, as marginalized communities encompass a high proportion of front-line workers especially susceptible to COVID-19 exposure, the Court is stripping away a crucial social-distancing site and impelling people to seek shelter in concentrated, unsanitary areas if they become houseless.12 If the United States is unable to provide for the most indigent, how does this reflect on the care we have for humanity? Decisions like Alabama can also exacerbate political disillusionment within marginalized groups. As low-income people and racial minorities are less likely to engage politically, the eviction moratorium’s lifting will further concretize marginalized groups’ impression of a government that is not responsive to their needs.13 Without control over decisions impacting them, marginalized groups have no incentive to engage politically. Furthermore, cultivating an informed populace is vital for a robust civil society. And when the public is more informed about an issue, they are more likely to form articulate opinions and participate in the political process.14 But without access to full legal opinions, staying informed on pertinent issues is not accessible for marginalized groups. Moreover, this decision compels one to examine the consequences of the Court’s compositional and procedural changes. This case will produce detrimental effects regarding the containment of COVID-19 and exacerbate the number of homeless people in the U.S. With so many spheres of life affected—including public health, housing, and safety—the American people deserve further elaboration. Furthermore, having a 6-3 conservative majority in the Supreme Court is not representative of the American people, which provokes one to question whether the Supreme Court should be allowed to make decisions that do not reflect majority opinion and Congress should implement legal reform (e.g. through court packing, term limits, or restructuring the appointment process). Would it be more democratic to increase people’s ability to provide input for matters directly impacting them? Lastly, Supreme Court power derives from its legitimacy, yet this decision is not conducive to building public trust in the Court.
IV. Solutions
Some argue that the Supreme Court wields too much power over decisions directly impacting the mass public. Should the Court be allowed to get away with so much ambiguity? Should the Court be held more democratically accountable, or stay “independent”—even if this means going against the majority’s wishes? One should note that majority opinion is unstable and evolves overtime. For example, when Loving v. Virginia legalized interacial marriage in 1967, 72% of Americans opposed interacial marriage.15 This demonstrates how the mass public’s 15 https://origins.osu.edu/article/interracial-marriage-post-racial-america opinion is not always what’s best for society or the most equitable. The Supreme Court was established to be insulated against phenomena like the bandwagon effect, groupthink, and conspiracy theories as an independent institution. Its members are expected to make more informed decisions than the conventional American. One solution to holding the judicial branch accountable is holding congressional hearings over the constitutionality of shadow docket cases. In fact, the House Judiciary Committee panel held its first hearing on the shadow docket on Feb. 18, in which members from both parties expressed concerns about its secretive nature.16 However, these hearings bring the constitutional dilemma of delegation of powers and Congressional duties into question: how much oversight can Congress have over the judicial branch? With its inability to pass legislation or make budgetary commitments, the judicial branch is already perceived as the weakest branch, and Congress the strongest. Giving Congress the authority to regulate the judicial branch by setting limits on the volume of the Court’s shadow docket may constitute interference with its independence. Another solution to increased transparency would be requiring Justice votes to be publicized. Many shadow docket opinions go unsigned, enabling Justices to vote on controversial issues while evading public discontent. The American people should have access to how Justices vote, because Justices are appointed to make decisions that guide the country’s legal trajectory and influence how people live. Furthermore, requiring vote breakdowns does not require additional effort as it is not time-sensitive and would foster greater democratic accountability. Under the current arrangement, Justices can side with special minority interests 16 (e.g. economic elites and business-oriented groups) through unsigned votes when doing so would be seen as inappropriate if they were required to sign their name. Some also argue that shadow docket precedent should only apply to future shadow docket cases. This way, precedent would only apply to cases decided under the same circumstances, which would give shadow docket decisions less leverage in the legal environment. This would diminish shadow docket requests with political aims, since shadow docket decisions would no longer have such an outsized influence on determining constitutional issues.
V. Conclusion
Keeping the shadow docket is necessary, as there will inevitably be cases that demand immediate attention and have pressing legal consequences. However, many shadow docket cases are not wielded to respond to these conditions, but to advance political agendas by overturning legal precedents. Too many shadow docket cases hastily answer constitutional questions that do not need to be immediately addressed and create inextricable consequences for the American people. The shadow docket enables the Court to circumvent the careful deliberation and detailed reasoning imperative to legal durability. In an effort to make the courts more democratic and prevent inscrutable decisions, the Supreme Court should reorient its current balance of shadow docket and merits cases by relying less on shadow docket cases and placing a greater emphasis on merits case decisions.