The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic

by Stephen Vladeck

INSTANT NEW YORK TIMES BESTSELLER. An acclaimed legal scholar’s “important” ( New York Times ) and “fascinating” ( Economist ) exposé of how the Supreme Court uses unsigned and unexplained orders to change the law behind closed doors ​ The Supreme Court has always had the authority to issue emergency rulings in exceptional circumstances. But since 2017, the Court has dramatically expanded its use of the behind-the-scenes “shadow docket,” regularly making decisions that affect millions of Americans without public hearings and without explanation, through cryptic late-night rulings that leave lawyers—and citizens—scrambling.    The Court’s conservative majority has used the shadow docket to green-light restrictive voting laws and bans on abortion, and to curtail immigration and COVID vaccine mandates. But Americans of all political stripes should be worried about what the shadow docket portends for the rule of law, argues Supreme Court expert Stephen Vladeck. In this rigorous yet accessible book, he issues an urgent call to bring the Court back into the light. Updated with a new preface, The Shadow Docket is an essential read for understanding the inner workings of the Supreme Court—and American democracy.  

352 pages, Paperback

Published May 21, 2024

About the author

Stephen I. Vladeck (@steve_vladeck) holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Professor Vladeck has argued over a dozen cases before the U.S. Supreme Court, the Texas Supreme Court, and various lower federal civilian and military courts; has testified before numerous congressional committees and Executive Branch agencies and commissions and the Texas legislature; has served as an expert witness both in U.S. state and federal courts and in foreign tribunals; and has received numerous awards for his influential and widely cited legal scholarship, his prolific popular writing, his teaching, and his service to the legal profession.

Vladeck is the co-host, together with Professor Bobby Chesney, of the popular and award-winning “National Security Law Podcast.” He is CNN’s Supreme Court analyst and a co-author of Aspen Publishers’ leading national security law and counterterrorism law casebooks. He is editor and author of "One First," a popular weekly newsletter about the Supreme Court. And he is currently writing a book on the rise of the Supreme Court's "shadow docket," to be published by Basic Books in May 2023.

Reviews

[Jason Kinn · Rating 4 out of 5]

Vladeck makes a strong case that the U.S. Supreme Court is delegitimizing itself by issuing unsigned, unreasoned orders that issue without an opportunity for the court to read any briefing or hear any argument.

The shadow docket is the docket where emergency motions are heard, and where certiorari petitions are granted or denied. It was not always the case that the court was in complete control of its own docket. It used to have a more limited, but mandatory, jurisdiction over certain types of appeals. The Judges' Bill, pushed through by extremely influential Chief Justice Taft, changed that system to one of court discretion, including both which cases to take and which issues to address in those cases.

In the 1970s and 1980s, the use of the shadow docket increased because of the increasing use of the death penalty by the states. And these cases were often brought to the Supreme Court for a stay at the last minute, largely because a person convicted of a death penalty crime couldn't challenge the method of execution or make other final collateral appeals until an execution date was set. The decision of whether or not to stay a death penalty was necessarily an emergency, one for which the court could not convene in person.

Vladeck convincingly argues that the use of the shadow docket to provide substantive relief in other situations has dramatically increased since Ruth Bader Ginsburg decided to not give up her seat on the Supreme Court in 2016 to a younger, healthier jurist and instead decided to die in 2020. Justice Barrett was much friendlier, just as a matter of statistics, to using the shadow docket than Justice Ginsburg. The scope of the shadow docket also increased. Today, the Court sometimes uses the shadow docket to summarily issue an injunction without a record (or a decision) in the lower court. The Court sometimes vacates well-reasoned 85-page orders issued by district court judges -- without providing any reasoning at all for why the district court is wrong. And the Court has been issuing these shadow docket decisions in cases in which the resulting status quo (for the time it takes for a full decision later) is a clear violation of existing Constitutional law.

Vladeck is not a partisan. He supports all the arguments he is making with citations to the cases themselves, so you can go look them up. He is advocating for decisions that are written down and provide guidance for the future conduct of government and private actors, and for the guidance of lower courts. That does not seem too much to ask.

The book is accessible and a fast read, but also gives plenty of info that most legal practitioners would not have been taught in law school.

[Lawrence · Rating 4 out of 5]

If you want to understand how the Roberts' Supreme Court functions to undermine,the Courts own legitimacy . . . more importantly, why you as an ordinary citizen should care then read this book. And, you don't have to have any legal training to understand and grasp what this book is saying to do that. Read it especially if you care about our democratic system. It's an important and timely read.

[Steve Hostert · Rating 5 out of 5]

This page turning book is very important and reveals some disturbing practices by an esteemed panel of Supreme Court justices.

One of the most disturbing practices is the court has been cherry picking cases that they can rule on quickly and make themselves look good.