The shadow docket (or non-merits docket) refers to motions and orders in the Supreme Court of the United States in cases which have not yet reached final judgment, decision on appeal, and oral argument. This especially refers to stays and injunctions (preliminary relief), but also includes summary decisions and grant, vacate, remand (GVR) orders. The phrase "shadow docket" was first used in this context in 2015 by University of Chicago Law professor William Baude.
The shadow docket is a break from ordinary procedure. Such cases receive very limited briefings and are typically decided a week or less after an application is filed. The process generally results in short, unsigned rulings. On the other hand, merits cases take months, include oral argument, and result in lengthy opinions detailing the reasoning of the majority and concurring and dissenting justices, if any.
It is used when the Court believes an applicant will suffer "irreparable harm" if its request is not immediately granted. Historically, the shadow docket was rarely used for rulings of serious legal or political significance. However, since 2017, it has been increasingly used for consequential rulings, especially for requests by the Department of Justice for emergency stays of lower-court rulings. The practice has been criticized for various reasons, including for bias, lack of transparency, and lack of accountability.
Terminology
The term "shadow docket" was coined in 2015 by William Baude, who wrote:
The term has been used by some justices themselves, with Justice Elena Kagan calling the Court's "shadow-docket decision-making" "every day becom[ing] more unreasoned, inconsistent, and impossible to defend" in a dissent to a denial of an application for injunctive relief in the case Whole Woman's Health v. Jackson (2021). The phrase itself has been criticized by Justice Samuel Alito, who called it "sinister" in a university speech and saying it was "used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways", and by senators, with Ted Cruz, a former solicitor general of Texas, saying: "Shadow docket, that is ominous. Shadows are really bad, like really, really bad".
Procedure
In the Supreme Court's ordinary proceedings, cases are filed to the merits docket. Cases are accepted if four justices decide to grant certiorari (the so-called rule of four), with the overwhelming majority being denied (around 80 out of 7,000–8,000 petitions for certiorari are granted each term). Accepted cases then feature full briefings (including from amici curiae, if any) and oral arguments, with cases generally lasting months. Finally, the Court issues a lengthy, signed majority opinion, in which the majority extensively explains its reasoning for the ruling.
For the shadow docket, following an application to the relevant circuit justice, they will decide whether to independently make a ruling or refer it to their colleagues. Applications are dealt with on an accelerated time frame, with decisions coming in a week or less. Should a justice proceed alone, the parties in a case may request that other justices overrule them instead. According to the Court, there are four criteria for stays to be granted:
Shadow docket orders are usually unsigned and unexplained. Court observers may attempt to infer how the justices split based on signed concurrences and dissents, rather than the majority opinion. In the Court's August 2020July 2021 term, the exact vote count was known in 14 cases out of the 73 emergency cases referred to the whole court (there were 150 such cases in total). There were 56 merits docket rulings during that period. Inferences for judicial splits are inexact unless there are three public dissents for certiorari denials or four for all other orders.
Authority to issue stays and injunctions
Congress has specifically authorized each justice to issue stays pending certiorari under . Under the Supreme Court's Rules 22 and 23, requests for stay are directed to the assigned circuit justice, who can either grant, deny, or refer the request to the full court.
Before 1990, the rules of the Supreme Court also stated that "a writ of injunction may be granted by any Justice in a case where it might be granted by the Court." However, this part of the rule (and all other specific mention of injunctions) was removed in the Supreme Court's rules revision of December 1989. Nevertheless, requests for an injunction under the All Writs Act are sometimes directed to the circuit justice.