Reuters, by Lawrence Hurley, Andrew Chung, and Jonathan Allen: In the months before former President Donald Trump left office in January, the U.S. Supreme Court briskly paved the way for the lethal injection of 13 federal inmates, the first federal executions in 17 years.
In many of those cases, the court summarily overturned lower court rulings using an obscure legal procedure known as the “shadow docket.” But the short-circuit approach, intended only for emergencies, isn’t reserved for death penalty cases. It has, in the last four years, significantly changed the way the high court does business.
Increasingly, the court relies on the shadow docket to make decisions in a wide range of consequential cases, often in a dramatically accelerated fashion and without providing signed opinions or detailed explanations. Sometimes, as in death penalty cases, the decisions are irreversible.
Cases on the docket can be effectively resolved even as lower courts are continuing to assess them – sometimes even before all the evidence is known. Decisions can come in the middle of the night, with no public discussion and no guidance to lower-court judges on how to analyze similar cases.
The speed and secretiveness has drawn criticism from legal experts both on the right and left, who call it an improper use of the court’s tremendous power.
“It’s hard for the public to know what is going on, and it’s hard for the public to trust that the court is doing its best work,” said William Baude, a conservative law professor at University of Chicago Law School who coined the phrase “shadow docket” and has called for greater transparency.
To get on the shadow docket, any litigant can apply to a single justice, who decides whether to forward the dispute to the full court. Five votes among the nine justices are needed to grant a request. No oral arguments are made but opposing attorneys can file briefs in opposition. To be granted, the request must meet certain criteria, including that the applicants would suffer “irreparable harm” if it is not granted.
The public generally sees the court as sorting out matters of national importance through extensive briefing, oral arguments and lengthy rulings that explain the law. But the number of substantive shadow docket decisions rose dramatically during the Trump administration. In those four years, the government filed shadow docket applications at 20 times the rate of each of the two previous eight-year administrations. The high court granted the government’s requests in a majority of cases.
The high court has continued to use the shadow docket post-Trump. In recent cases, including several last month, the conservative majority freed churches from local government dictates aimed at curbing the spread of the coronavirus – without the usual benefit of lawyerly arguments to air the merits of both sides.
“If (the justices) can make significant decisions without giving any reasons, then there’s really no limit to what they can do,” said David Cole, legal director of the American Civil Liberties Union.
Through a spokesperson, the Supreme Court justices declined to comment.
With the court’s 6-3 conservative majority, the expedited process could halt some of President Joe Biden’s policy goals in their tracks, including on such issues as immigration, the environment and social issues such as abortion and lesbian, gay, bisexual and transgender rights.
As part of its normal oversight function, the House Judiciary Committee panel held its first hearing on the shadow docket on Feb. 18 during which members from both parties expressed concerns about its secretive nature.
Some Republican officials, however, welcome the chance to quickly block Biden administration policies by filing their own emergency applications. Alabama Attorney General Steve Marshall, a Republican, said that he and other GOP attorneys general would “absolutely” consider filing shadow docket applications to halt Biden policies they believe are unlawful.
“It’s really the opportunity in which the winner and loser is declared” immediately, he said.
Hashim Mooppan, a lawyer who served in the Trump administration’s Justice Department, defended the high court’s use of the docket in recent cases, noting that many requests were prompted by lower court rulings in specific jurisdictions that nonetheless blocked policies nationwide.
“If someone is going to speak to these issues on a nationwide basis, it makes sense it is the Supreme Court,” he said.
The Trump administration won shadow docket requests in 28 of 41 cases during his term – a near 70% success rate, according to Stephen Vladeck, a professor at the University of Texas at Austin School of Law. Just eight were filed in 16 years by the administrations of Presidents George W. Bush and Barack Obama, four of which were granted.
“There is clear one-sidedness here,” said Baude, the University of Chicago law professor. “The government, especially the federal government, has a special ability to get the court’s attention.”
Although the shadow docket has long been part of the Supreme Court’s operations, The Trump Justice Department broke norms by repeatedly resorting to these emergency applications to undo the actions of lower courts it disliked – sometimes leapfrogging appeals courts along the way.
The most obvious change came in federal death penalty cases. Between July and January, the justices on eight occasions, often with little or no explanation, overturned lower court rulings that had put federal executions on hold.
The high court cleared the way for Lisa Montgomery’s execution in the early hours of Jan. 13 for a gruesome Missouri murder, for instance, in a terse two-sentence order. The 52-year-old Missouri inmate had been sentenced to death for the December 2004 strangulation of Bobbie Jo Stinnett, who was eight months pregnant at the time. Montgomery cut Stinnett’s fetus from the womb and tried to pass off the child as her own before she was arrested.
Two lower courts had paused the execution on technical grounds. The justices offered no rationale in overturning both decisions.
Montgomery died by lethal injection 90 minutes after the court’s last decision.
For Montgomery’s sister, Diane Mattingly, the high court’s swiftness was a baffling and “cavalier” way to make such a grave decision, with no debate or explanation.
“If they’d taken time to do that, then I would have understood,” she said. “But they didn’t.”
The federal executions offered a glimpse of unease among some on the court over the growing power of the shadow docket, especially when they lifted stays of executions entered by lower courts.
The last time that happened, on Jan. 15, the court’s three liberal justices objected.
“This is not justice,” liberal Justice Sonia Sotomayor wrote in a dissenting opinion, citing the novel issues raised in the cases.
Conservative justices have said that although death penalty cases often consume years, lawyers representing death row inmates wait until the last minute to file claims and are, in essence, seeking to game the system.
In 2015, during oral arguments in another death penalty case, conservative Justice Samuel Alito called such tactics part of a “guerilla war” against the death penalty.
Besides its role in the spate of federal death penalty cases, the shadow docket figured prominently in an array of other highly contentious cases.
One five-sentence order in December 2017 allowed Trump, a Republican, to ban travelers from several Muslim-majority countries. A four-sentence order in January 2019 similarly granted Trump’s request to ban most transgender troops from the military. Another order in July 2020 – in just one sentence – allowed Trump to redirect military funds to build part of a wall on the southern border with Mexico.
“It just felt shockingly arbitrary,” said Shannon Minter, a lawyer at the National Center for Lesbian Rights, an LGBT rights group that challenged the transgender military policy, recalling the court’s decision in that case.
“It felt like really casting aside the normal judicial process in a very, very heavy-handed way,” Minter said.
Biden immediately reversed the ban with an executive order when he took office in January.
Will Sabbath-keepers suffer the death penalty at the hands of the shadow docket, when lower courts don’t give them the death penalty? Is the stage being set?
“As the Sabbath has become the special point of controversy throughout Christendom, and religious and secular authorities have combined to enforce the observance of the Sunday, the persistent refusal of a small minority to yield to the popular demand will make them objects of universal execration. It will be urged that the few who stand in opposition to an institution of the church and a law of the state ought not to be tolerated; that it is better for them to suffer than for whole nations to be thrown into confusion and lawlessness… This argument will appear conclusive; and a decree will finally be issued against those who hallow the Sabbath of the fourth commandment, denouncing them as deserving of the severest punishment and giving the people liberty, after a certain time, to put them to death. Romanism in the Old World and apostate Protestantism in the New will pursue a similar course toward those who honor all the divine precepts.” Great Controversy, page 615.2.