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The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic
An acclaimed legal scholar exposes the Supreme Court’s increasing use of unsigned, unexplained orders to change the law—all 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.
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.
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Published May 16, 2023
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About the author
Stephen Vladeck
3 books61 followersStephen 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.
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.
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January 3, 2024
When judges exercise de facto, partisan law making.
So I’m no lawyer and have very little experience with constitutional law and how the Supreme Court functions and that’s why I picked up this recent release. I found that it was accessible and is good for an audience like me who is groping in the dark about how the Court functions and the latest and controversial rulings. The main thrust of this timely book comes down to the difference between the merits docket and the shadow docket. I’ll give a crude explanation as far as I understand about how these two dockets work. Please correct me if I’m wrong.
The merits docket is what the public is used to when the Court hands down decisions with oral argument, opinions and dissent given. All the landmark decisions you can think of likely come about from the merits docket. The shadow docket, on the other hand, is basically the Court making a decision, or non-decision, about lower court or state law while offering no written explanation for scrutiny and allowing the judges to hide how they voted. The shadow docket decisions are traditionally rare and are used for emergency decisions like staying an execution. The problem that the author demonstrates very well in this book is that the shadow docket’s use has accelerated over the last ten years and is clearly tinged with political ideology and diverts the court’s attention from the merits docket. More on that in a moment.
The author believes that the use of the shadow docket all started with Taft, the only person to be president and to sit on the Supreme Court. Taft gave the court more discretion about running their own agenda. Rather than being the final decision court it had much more autonomy to set their own agenda after Taft. The Judges Bill of 1925 helped bring court autonomy. But it wasn’t until 1988 that the court finally had full discretion over its docket. Judges started to pick and choose what cases they wanted to review and even only pick a question from the case to answer in a highly selective manner. Soon, the justices were even writing their own question to answer. So what I picked from this is that the Court shifted from being beholden to deciding cases to having total discretion over the cases it chose to see. For me the problem is apparent immediately: the Court can become a de facto and autonomous legislative branch. It is the very ability to deny or see a case, called certiorari, that state law and lower court decisions can become enshrined into law because the Supreme Court has the autonomy to deny even reviewing a case. And then when you combine this Court autonomy with the anonymity of the shadow docket, you indirectly have a concentration of unelected judges making legislative decisions with zero public accountability. This is the modern day function of the Supreme Court.
Sounds kind of bad.
The impact of the Supreme Court autonomy is tremendous. The Court can inexplicably contradict itself with the shadow docket like a differential stay of execution based on whether a prisoner was muslim or Buddhist (yes this happened, zero explanation because it happened on the shadow docket). More recently the Court guaranteed three house seats, that would have gone democratic in Alabama 2022 midterm, voted republican because the shadow docket refused to put an injunction on gerrymandering laws. The use of emergency decisions has seen a sharp upturn on cases that aren’t really emergencies. Trump’s solicitor general sought emergency release 41 times compared to only 8 times combined under Obama and Bush. There was an unprecedented use of the shadow docket and emergency use to prohibit California and New York state laws that prohibited large religious gatherings during the COVID pandemic, only made possible by the addition of Judge Barrett. There is flagrant hypocrisy of the conservative judges who wanted to stop mail-in ballot voting during the pandemic because it was too close to the election (called the Purcell principle) but then they did absolutely nothing to stay an injunction in florida that would help 1 million ex-felons be able to vote when that state law passed close to election as well. Perhaps these are false equivalence but when you stand back and look at the emergency use and shadow docket, it all clearly leans conservative and helps Republican state and federal politicians. It’s pretty undeniable. But all of this occurs on the shadow docket where not a single oral argument or opinion is issued. The author’s main point is that the increasing use of the shadow docket for partisan de facto legislation totally undermines the court’s legitimacy as an impartial judiciary.
The author asserts that it is well within the purview of congress to reform the judiciary. He states that congress should force the supreme court back onto the merit dockets and totally reform the shadow docket. It seems like a good idea. From my perspective, one of the issues is that the court simply isn’t large enough. The entire argument to use the shadow docket is predicated on the assumption that there are only 9 judges to go around so they can’t waste all their time on only merit dockets or else everything else will grind to a halt.
Ok. Expand the court.
There I fixed it.
Anyway, great, great read. Pick it up now. It’s very important.
So I’m no lawyer and have very little experience with constitutional law and how the Supreme Court functions and that’s why I picked up this recent release. I found that it was accessible and is good for an audience like me who is groping in the dark about how the Court functions and the latest and controversial rulings. The main thrust of this timely book comes down to the difference between the merits docket and the shadow docket. I’ll give a crude explanation as far as I understand about how these two dockets work. Please correct me if I’m wrong.
The merits docket is what the public is used to when the Court hands down decisions with oral argument, opinions and dissent given. All the landmark decisions you can think of likely come about from the merits docket. The shadow docket, on the other hand, is basically the Court making a decision, or non-decision, about lower court or state law while offering no written explanation for scrutiny and allowing the judges to hide how they voted. The shadow docket decisions are traditionally rare and are used for emergency decisions like staying an execution. The problem that the author demonstrates very well in this book is that the shadow docket’s use has accelerated over the last ten years and is clearly tinged with political ideology and diverts the court’s attention from the merits docket. More on that in a moment.
The author believes that the use of the shadow docket all started with Taft, the only person to be president and to sit on the Supreme Court. Taft gave the court more discretion about running their own agenda. Rather than being the final decision court it had much more autonomy to set their own agenda after Taft. The Judges Bill of 1925 helped bring court autonomy. But it wasn’t until 1988 that the court finally had full discretion over its docket. Judges started to pick and choose what cases they wanted to review and even only pick a question from the case to answer in a highly selective manner. Soon, the justices were even writing their own question to answer. So what I picked from this is that the Court shifted from being beholden to deciding cases to having total discretion over the cases it chose to see. For me the problem is apparent immediately: the Court can become a de facto and autonomous legislative branch. It is the very ability to deny or see a case, called certiorari, that state law and lower court decisions can become enshrined into law because the Supreme Court has the autonomy to deny even reviewing a case. And then when you combine this Court autonomy with the anonymity of the shadow docket, you indirectly have a concentration of unelected judges making legislative decisions with zero public accountability. This is the modern day function of the Supreme Court.
Sounds kind of bad.
The impact of the Supreme Court autonomy is tremendous. The Court can inexplicably contradict itself with the shadow docket like a differential stay of execution based on whether a prisoner was muslim or Buddhist (yes this happened, zero explanation because it happened on the shadow docket). More recently the Court guaranteed three house seats, that would have gone democratic in Alabama 2022 midterm, voted republican because the shadow docket refused to put an injunction on gerrymandering laws. The use of emergency decisions has seen a sharp upturn on cases that aren’t really emergencies. Trump’s solicitor general sought emergency release 41 times compared to only 8 times combined under Obama and Bush. There was an unprecedented use of the shadow docket and emergency use to prohibit California and New York state laws that prohibited large religious gatherings during the COVID pandemic, only made possible by the addition of Judge Barrett. There is flagrant hypocrisy of the conservative judges who wanted to stop mail-in ballot voting during the pandemic because it was too close to the election (called the Purcell principle) but then they did absolutely nothing to stay an injunction in florida that would help 1 million ex-felons be able to vote when that state law passed close to election as well. Perhaps these are false equivalence but when you stand back and look at the emergency use and shadow docket, it all clearly leans conservative and helps Republican state and federal politicians. It’s pretty undeniable. But all of this occurs on the shadow docket where not a single oral argument or opinion is issued. The author’s main point is that the increasing use of the shadow docket for partisan de facto legislation totally undermines the court’s legitimacy as an impartial judiciary.
The author asserts that it is well within the purview of congress to reform the judiciary. He states that congress should force the supreme court back onto the merit dockets and totally reform the shadow docket. It seems like a good idea. From my perspective, one of the issues is that the court simply isn’t large enough. The entire argument to use the shadow docket is predicated on the assumption that there are only 9 judges to go around so they can’t waste all their time on only merit dockets or else everything else will grind to a halt.
Ok. Expand the court.
There I fixed it.
Anyway, great, great read. Pick it up now. It’s very important.
May 31, 2023
"Power tends to corrupt; absolute power corrupts absolutely."
Or....how the Supreme Court went from being seen far more favorably than congress or the president, to being seen far less favorably...and it's a pretty low bar to meet these days.
This book gives lots of details about how the SC has historically functioned, even with the traditional disagreements between the judges. We expect some give and take, and some differences of opinion from time to time. Having a format to work through that, openly and transparently, is part of what makes our republic strong. Hearing the reasoning used helps reassure us that these judges are considering the law, not some inner preference or belief. It helps solidify that we have a balanced system with an accountable and fair final read on complex issues.
But....
This shadow docket and the increased use of it screams partisanship and misuse. It screams corruption of the worst kind, when decisions are not signed or explained and yet have profound influence over the lives of people in our country and sets precedent for lower courts. It's ripe for abuse of the worst kind. And it allows for contradictory conclusions that don't pass the smell test.
If you aren't very familiar with how this court works, how they decide what to rule on and how they go about being a last resort for lower courts and litigants, this is worth consuming. This should be more of a story for the news than it currently is, added to all the apparent influence peddling behind the scenes that has come to light recently.
No one should have this much uncensored power.
Or....how the Supreme Court went from being seen far more favorably than congress or the president, to being seen far less favorably...and it's a pretty low bar to meet these days.
This book gives lots of details about how the SC has historically functioned, even with the traditional disagreements between the judges. We expect some give and take, and some differences of opinion from time to time. Having a format to work through that, openly and transparently, is part of what makes our republic strong. Hearing the reasoning used helps reassure us that these judges are considering the law, not some inner preference or belief. It helps solidify that we have a balanced system with an accountable and fair final read on complex issues.
But....
This shadow docket and the increased use of it screams partisanship and misuse. It screams corruption of the worst kind, when decisions are not signed or explained and yet have profound influence over the lives of people in our country and sets precedent for lower courts. It's ripe for abuse of the worst kind. And it allows for contradictory conclusions that don't pass the smell test.
If you aren't very familiar with how this court works, how they decide what to rule on and how they go about being a last resort for lower courts and litigants, this is worth consuming. This should be more of a story for the news than it currently is, added to all the apparent influence peddling behind the scenes that has come to light recently.
No one should have this much uncensored power.
Read
November 13, 2023As a forever fan of legal nonfiction I did appreciate the many history lessons that I received while reading this one. It really did put a lot of things in perspective, both historically and recently. I'm really not the person who could articulate what was so good about this, other than I got more out of it than I initially thought that I would. While also wishing that it was slightly longer? Slightly more probing. Though with the growth of shadow docket rulings I understand that it might not be possible to get what I might have wished for when all of the implications of some of these rulings have yet to have the full impact they could still have.
August 18, 2024
The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, Stephen Vladeck, 2023, 334 pages, Dewey 347.7326 V843s
The current Republican majority of the Supreme Court decides cases for partisan political purposes. They hide behind unsigned, unexplained, "shadow docket" rulings.
Unsigned actions by the radical-right majority, to undermine the rule of law: unreasoned, inconsistent, impossible to defend. --Elena Kagan, p. xiv. And exceed the Court's authority. pp. 13, 154.
The Supreme Court declines to hear 99% of the cases brought to it. Those denials permit the lower-court ruling to stand, and thereby create law. p. 63-64.
Congress has the power to change the rules the Supreme Court operates under. But forbears to do so. p. 59.
It takes four justices to agree to hear a petition. This is an /unwritten/ rule! p. 81. Since Amy Coney Barrett succeeded Ruth Bader Ginsburg in 2020, the three voices of reason can no longer compel a petition to be heard, over the six on the radical right. p. 83.
2014.10.06-2015.02.09 The Supreme Court legalized same-sex marriage in 18 states by refusing to hear the cases. pp. 75, 77. The justices may have been trying to let gay marriage become legal in all 50 states without saying so.
2014.11.06 But the circuit court for Tennessee, Kentucky, Ohio and Michigan forced their hand. It upheld gay-marriage bans in its states, saying that if courts are to invalidate such laws, the people deserve a reason, and the circuit court couldn't find one. p. 76.
2015.01.16 The Supreme Court agreed to hear the petitions that the Sixth Circuit Court ruled against. p. 77.
2015.06.26 Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan legalized same-sex marriage in the whole U.S., over the dissent of Roberts, Scalia, Thomas, and Alito. pp. 61, 79. It may have been an awareness that this would be the result, that led Roberts to refuse to hear the petitions from the earlier 18 states. pp. 80-81.
2020.11-2021.04 Amy Coney Barrett created majorities in six cases to emergency-order stopping government action, that lower courts had twice denied. 2005-2020, the Court did so only four times. p. 17.
2021.09.01 Alito, Thomas, Gorsuch, Kavanaugh, Barrett outlawed abortions in Texas: in a 400-word order in Whole Women's Health vs. Jackson, they upheld Texas's ban on abortions past 6 weeks of pregnancy--effectively overturning the 1973 Roe v. Wade precedent, 10 months before Dobbs v. Jackson Women's Health made it official, 2022.06.24. pp. ix-x, 16.
2022.01 The radical-right Court blocked OSHA's COVID vaccination-or-testing mandate, directly affecting 83 million Americans. Without a hearing. Without explanation. p. 16.
2022.02.07- Alito, Thomas, Gorsuch, Kavanaugh, Barrett required Voting-Rights-Act-violating congressional-district maps to be used in Southern states, creating at least three, maybe up to seven, safe Republican House seats that should have been safe Democratic seats. Without explanation. Unsigned. pp. 13-16.
See also
Justice on the Brink, Linda Greenhouse, 2021 https://www.goodreads.com/review/show...
A People's History of the Supreme Court, Peter Irons, 1999 https://www.goodreads.com/review/show...
more judiciary books:
https://www.goodreads.com/review/list...
The current Republican majority of the Supreme Court decides cases for partisan political purposes. They hide behind unsigned, unexplained, "shadow docket" rulings.
Unsigned actions by the radical-right majority, to undermine the rule of law: unreasoned, inconsistent, impossible to defend. --Elena Kagan, p. xiv. And exceed the Court's authority. pp. 13, 154.
The Supreme Court declines to hear 99% of the cases brought to it. Those denials permit the lower-court ruling to stand, and thereby create law. p. 63-64.
Congress has the power to change the rules the Supreme Court operates under. But forbears to do so. p. 59.
It takes four justices to agree to hear a petition. This is an /unwritten/ rule! p. 81. Since Amy Coney Barrett succeeded Ruth Bader Ginsburg in 2020, the three voices of reason can no longer compel a petition to be heard, over the six on the radical right. p. 83.
2014.10.06-2015.02.09 The Supreme Court legalized same-sex marriage in 18 states by refusing to hear the cases. pp. 75, 77. The justices may have been trying to let gay marriage become legal in all 50 states without saying so.
2014.11.06 But the circuit court for Tennessee, Kentucky, Ohio and Michigan forced their hand. It upheld gay-marriage bans in its states, saying that if courts are to invalidate such laws, the people deserve a reason, and the circuit court couldn't find one. p. 76.
2015.01.16 The Supreme Court agreed to hear the petitions that the Sixth Circuit Court ruled against. p. 77.
2015.06.26 Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan legalized same-sex marriage in the whole U.S., over the dissent of Roberts, Scalia, Thomas, and Alito. pp. 61, 79. It may have been an awareness that this would be the result, that led Roberts to refuse to hear the petitions from the earlier 18 states. pp. 80-81.
2020.11-2021.04 Amy Coney Barrett created majorities in six cases to emergency-order stopping government action, that lower courts had twice denied. 2005-2020, the Court did so only four times. p. 17.
2021.09.01 Alito, Thomas, Gorsuch, Kavanaugh, Barrett outlawed abortions in Texas: in a 400-word order in Whole Women's Health vs. Jackson, they upheld Texas's ban on abortions past 6 weeks of pregnancy--effectively overturning the 1973 Roe v. Wade precedent, 10 months before Dobbs v. Jackson Women's Health made it official, 2022.06.24. pp. ix-x, 16.
2022.01 The radical-right Court blocked OSHA's COVID vaccination-or-testing mandate, directly affecting 83 million Americans. Without a hearing. Without explanation. p. 16.
2022.02.07- Alito, Thomas, Gorsuch, Kavanaugh, Barrett required Voting-Rights-Act-violating congressional-district maps to be used in Southern states, creating at least three, maybe up to seven, safe Republican House seats that should have been safe Democratic seats. Without explanation. Unsigned. pp. 13-16.
See also
Justice on the Brink, Linda Greenhouse, 2021 https://www.goodreads.com/review/show...
A People's History of the Supreme Court, Peter Irons, 1999 https://www.goodreads.com/review/show...
more judiciary books:
https://www.goodreads.com/review/list...
March 24, 2025
Torn on this. It discusses a very important topic and I think that’s carrying my review. It does get bogged down in minutia that I wish had been a little better explained, it dabbles in Roberts-esque prose that is just sort of impenetrable.
As a concept and source of information on the shadow docket, I think it’s in incredibly good and important. The author takes a nebulous and sort of undefined topic and really tries to put definition to it, which is a noble pursuit.
However, I think there is a simpler explanation without all of the sinister overtones, one that is still critical of the Supreme Court’s choices but dispenses with some of the theatric “can you believe they’re doing this“ faux outrage.
“the Supreme Court exercises judgment in what cases they see and will send feedback to lower courts through their use of procedures that are not visible to anyone outside of the Supreme Court. This hidden process of what they choose, and why they choose it is detrimental to the idea of the court, which legitimacy through the validity of their logic in decisions and arguments. This process has increased in recent years and is detrimental to the court, and the people‘s, interest”
My brain‘s probably rotten from too many pop psychology books, but I really wish this book had just been a little more clear. Worth suffering through regardless.
As a concept and source of information on the shadow docket, I think it’s in incredibly good and important. The author takes a nebulous and sort of undefined topic and really tries to put definition to it, which is a noble pursuit.
However, I think there is a simpler explanation without all of the sinister overtones, one that is still critical of the Supreme Court’s choices but dispenses with some of the theatric “can you believe they’re doing this“ faux outrage.
“the Supreme Court exercises judgment in what cases they see and will send feedback to lower courts through their use of procedures that are not visible to anyone outside of the Supreme Court. This hidden process of what they choose, and why they choose it is detrimental to the idea of the court, which legitimacy through the validity of their logic in decisions and arguments. This process has increased in recent years and is detrimental to the court, and the people‘s, interest”
My brain‘s probably rotten from too many pop psychology books, but I really wish this book had just been a little more clear. Worth suffering through regardless.
November 19, 2022
I had the chance to read an advanced copy of this wonderful book. The decisions made on the emergency or shadow docket of the Supreme Court impact us all, and Professor Vladeck's book explains how decisions are made and provides the history of how we got to this point. Filled with legal procedure, insider baseball, and stories that you won't believe, this book is perfect for anyone interested in how the Court works and influences all of our lives--and quite frankly, that should be all Americans! (available to pre-order, Released May 16, 2023)
October 25, 2023
4.5 stars
I’d heard of the shadow docket but wasn’t sure of its meaning so I picked up this book. Basically, the shadow docket is when the Supreme Court hears cases “on the side” so to speak. Their briefings are limited, decisions are unsigned and unexplained and are only posted on the Court’s website late at night or early in the morning. It was initially used for things like stays of executions because not acting then could cause irreparable harm but, in recent years, it’s being used more and more for political purposes rather than legal ones. Vladeck presents a frightening case about a Court that hasn’t been “checked” by Congress since 1988. No matter what side of the political spectrum you fall on, you should be concerned about the Court’s abuse of power.
I’d heard of the shadow docket but wasn’t sure of its meaning so I picked up this book. Basically, the shadow docket is when the Supreme Court hears cases “on the side” so to speak. Their briefings are limited, decisions are unsigned and unexplained and are only posted on the Court’s website late at night or early in the morning. It was initially used for things like stays of executions because not acting then could cause irreparable harm but, in recent years, it’s being used more and more for political purposes rather than legal ones. Vladeck presents a frightening case about a Court that hasn’t been “checked” by Congress since 1988. No matter what side of the political spectrum you fall on, you should be concerned about the Court’s abuse of power.
March 8, 2023
If you’re a Twitter fan of Steve Vladeck, or have any interest in the Supreme Court, this book is a must read. Professor Vladeck sheds light on the rise of the Shadow Docket in a manner accessible to lawyers and non lawyers alike. This book is not only important, but also an incredibly entertaining read.
December 19, 2023
4.5/5 — While Vladeck’s writing style is dense and not entirely reader-friendly (which is a shame, given that he makes the case that all Americans - and not just a handful of lawyers - should be aware of the ramifications of SCOTUS’ increasing and inconsistent use of the shadow docket), his analysis is both comprehensive and unassailable.
October 30, 2024
I have once again decided to embark on a mission to read a number of books on subjects that will be of great importance to the upcoming 2024 US Presidential Election. This was a great success as I prepared for 2020, with an outcome at the polls (and antics by both candidates up to Inauguration Day) that only a fiction writer might have come up with at the time! Many of these will focus on actors and events intricately involved in the US political system over the last few years, in hopes that I can understand them better and, perhaps, educate others with the power to cast a ballot. I am, as always, open to serious recommendations from anyone who has a book I might like to include in the process.
With the events of July 21, 2024, when Joe Biden chose not to seek re-election, the challenge has become harder to properly reflect the Democratic side. I will do the best I can to properly prepare and offer up books that can explore the Biden Administration, as well as whomever takes the helm into November.
This is Book #44 in my 2024 US Election Preparation Challenge.
In an election that has many important factors. One not readily at the forefront is that any presidential victor holds the power of the Supreme Court in their hand. As was seen during the disastrous presidency of Donald Trump, his selections were able to create a mess of the country’s legal direction and helped to hijack social progress across the land. As Stephen Vladeck argues effectively, the Court’s leaning was not only cemented on the right, but its excessive use of the Shadow Docket, where decisions were made away from open hearings and through veiled decisions that permitted judicial anonymity, to dismantle many long-standing decisions on the books or to inject poorly-drafted ideas into the legal landscape irregardless of the blatant xenophobia became precedent. In a book that is both educative and highly digestible, Vladeck keeps the reader in the middle of the action throughout. A great look behind the proverbial judicial curtain.
While no one can challenge that the US Supreme Court has a great deal of power, some can surely be abused under the right circumstances. Stephen Vladeck argues that there are needs surrounding the great powers of the Court, especially when trying to address emergencies in the legal world. These can also be used to shield the Court from having to be a public third branch of the American political system. Vladeck lays the groundwork for this by exploring the situation of the Court’s Shadow Docket, an ominous and powerful process that has long been woven into its fabric, but only recently seen to be highly problematic.
Vladeck provides the reader with a thorough history of the rise of the Shadow Docket and some of its legal tools to better understand how it came to gain such notoriety. He also shows that the docket has long been in place, though the reader will likely not have paid much attention. As the book progresses, the reader can easily see the power and troubling nature of the Shadow Docket, as well as how its rise would soon cater to implementing highly problematic decisions without having to face the public or assign legal decisions to any specifics justices.
Vladeck uses much of the book to address specifically examples of how the Court’s conservative majority used the shadow docket to steer the country’s legal pathway away from long-held views and provided some outlandish decisions, but did so behind the veil of anonymity that the shadow docket permitted. While this cannot be left entirely at the feet of the Trump Administration, their fingerprints are surely all over it, having nominated three of the nine justices that helped cement the conservative flavoring of decisions. From COVID to abortion, death row petitions to electoral challenges, the Court was able to push the limits and change legal precedent in order to steer things away from past decisions or create new foundations for lower courts to follow.
While this helps the reader to understand this legal phenomenon, what does it have to do with the 2024 election? The Court is said to act independently of either other branch of government or outside influence of the general population. It is ignorant to swallow that pill without challenge, though some would prefer we do. The selection of a president plays into the Court’s influence and can change the direction of legal matters for decades. As mentioned above, the choice of Trump in 2016 permitted three Justices to be nominated and seated to steer the Court significantly to the right. Let us put aside the mind-numbing arrogance of the Republican majority in the Senate on this matter, though it cannot be entirely forgotten. Choosing a president who had the power to nominate judges must play a role in how the American legal landscape is shaped. To dismiss its importance will surely leave the country in additional quagmires akin to the abortion rights lost by shortsighted and ignorant views pushed by a man who should never have control over anything other than where he stands in the prison yard.
While the book uses a great deal of legal arguments to push its arguments, Stephen Vladeck effectively presents his views with strong views. He does so with a clear narrative that educates the reader in clear chapters that are full of facts and examples. The book flows well from here and, while clearly pushing a view, offers clear ideas the reader can understand and perhaps enjoy. The law is never passive, nor should it be. As Stephen Vladeck makes clear throughout, there is a great deal about the US Supreme Court that is left outside the media’s general purview, though it should receive some light, if only to explore its shortcomings.
Kudos, Mr. Vladeck, for a sobering look at the US Supreme Court and its darker side.
Love/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
With the events of July 21, 2024, when Joe Biden chose not to seek re-election, the challenge has become harder to properly reflect the Democratic side. I will do the best I can to properly prepare and offer up books that can explore the Biden Administration, as well as whomever takes the helm into November.
This is Book #44 in my 2024 US Election Preparation Challenge.
In an election that has many important factors. One not readily at the forefront is that any presidential victor holds the power of the Supreme Court in their hand. As was seen during the disastrous presidency of Donald Trump, his selections were able to create a mess of the country’s legal direction and helped to hijack social progress across the land. As Stephen Vladeck argues effectively, the Court’s leaning was not only cemented on the right, but its excessive use of the Shadow Docket, where decisions were made away from open hearings and through veiled decisions that permitted judicial anonymity, to dismantle many long-standing decisions on the books or to inject poorly-drafted ideas into the legal landscape irregardless of the blatant xenophobia became precedent. In a book that is both educative and highly digestible, Vladeck keeps the reader in the middle of the action throughout. A great look behind the proverbial judicial curtain.
While no one can challenge that the US Supreme Court has a great deal of power, some can surely be abused under the right circumstances. Stephen Vladeck argues that there are needs surrounding the great powers of the Court, especially when trying to address emergencies in the legal world. These can also be used to shield the Court from having to be a public third branch of the American political system. Vladeck lays the groundwork for this by exploring the situation of the Court’s Shadow Docket, an ominous and powerful process that has long been woven into its fabric, but only recently seen to be highly problematic.
Vladeck provides the reader with a thorough history of the rise of the Shadow Docket and some of its legal tools to better understand how it came to gain such notoriety. He also shows that the docket has long been in place, though the reader will likely not have paid much attention. As the book progresses, the reader can easily see the power and troubling nature of the Shadow Docket, as well as how its rise would soon cater to implementing highly problematic decisions without having to face the public or assign legal decisions to any specifics justices.
Vladeck uses much of the book to address specifically examples of how the Court’s conservative majority used the shadow docket to steer the country’s legal pathway away from long-held views and provided some outlandish decisions, but did so behind the veil of anonymity that the shadow docket permitted. While this cannot be left entirely at the feet of the Trump Administration, their fingerprints are surely all over it, having nominated three of the nine justices that helped cement the conservative flavoring of decisions. From COVID to abortion, death row petitions to electoral challenges, the Court was able to push the limits and change legal precedent in order to steer things away from past decisions or create new foundations for lower courts to follow.
While this helps the reader to understand this legal phenomenon, what does it have to do with the 2024 election? The Court is said to act independently of either other branch of government or outside influence of the general population. It is ignorant to swallow that pill without challenge, though some would prefer we do. The selection of a president plays into the Court’s influence and can change the direction of legal matters for decades. As mentioned above, the choice of Trump in 2016 permitted three Justices to be nominated and seated to steer the Court significantly to the right. Let us put aside the mind-numbing arrogance of the Republican majority in the Senate on this matter, though it cannot be entirely forgotten. Choosing a president who had the power to nominate judges must play a role in how the American legal landscape is shaped. To dismiss its importance will surely leave the country in additional quagmires akin to the abortion rights lost by shortsighted and ignorant views pushed by a man who should never have control over anything other than where he stands in the prison yard.
While the book uses a great deal of legal arguments to push its arguments, Stephen Vladeck effectively presents his views with strong views. He does so with a clear narrative that educates the reader in clear chapters that are full of facts and examples. The book flows well from here and, while clearly pushing a view, offers clear ideas the reader can understand and perhaps enjoy. The law is never passive, nor should it be. As Stephen Vladeck makes clear throughout, there is a great deal about the US Supreme Court that is left outside the media’s general purview, though it should receive some light, if only to explore its shortcomings.
Kudos, Mr. Vladeck, for a sobering look at the US Supreme Court and its darker side.
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September 14, 2023
Reform👏🏻the👏🏻supreme👏🏻court👏🏻. This book lays out the case that the rise of the shadow docket directly correlates with the decline of public confidence in the Court, and they ain’t keen on fixing themselves. Vladeck makes it clear how desperately it needs some good old fashioned legislative hand holding to do their duty and fulfill its proper judicial role.
September 6, 2023
Eye-opening beyond even the things I knew. However, I am also a lawyer, so the procedural aspects of this were already somewhat familiar; I fear the audience for whom this book might be aimed isn't as prepared. If, as the book's conclusion states, "Lawyers shouldn't have a monopoly on understanding the full contours of the Supreme Court's decisionmaking," why is it so hard to explain exactly what the court is doing to the less educated members of the public who will never understand just how radical some of these measures are? Perhaps the reason not enough people are "caring" about the Court's delegitimization is because the processes are so highly technical they don't even know with what they're disagreeing. I gave this five stars because I found it fascinating; I just wish I could be confident people without a legal background might feel the same.
March 31, 2023
Shadow Docket is well-researched, wonderfully written, and extraordinarily topical. It is equal parts approachable to the lay reader and illuminating to the legally educated. It provides a novel lens through which to view the Supreme Court’s recent behavior while simultaneously distinguishing its particular brand of critique from more general political grievances. Shadow Docket not only unveils an underappreciated phenomenon, it suggests a few meaningful solutions and manages to be remarkably interesting along the way. It is a must-read for anyone interested in the operation of our nation’s highest court.
June 13, 2023
With a more politicized Supreme Court than any other time in modern history the “The Shadow Docket” has taken on a life of its own. Fundamentally, the shadow docket is where the Court rules on procedural matters, such as scheduling and issuing injunctions. But its role is changing, and the full story is more complex. Supreme Court cases take one of two tracks: merits docket or shadow docket. Each term the Court decides some 60 to 70 cases on the merits docket. Before rendering a ruling in each one, the Court considers numerous briefs and holds oral argument. It then issues a decision with a lengthy opinion explaining its reasoning, often with concurrences and dissents.
The process supports both informed decision-making and transparency. Almost every Supreme Court decision of significance, e.g. Brown v. Board of Education, Roe v. Wade, Citizens United v. Federal Election Commission, were decided on the merits docket. Most orders from the shadow docket, have little importance to anyone beyond the litigating parties. However, other shadow docket matters, such as requests to halt a lower court’s orders, can have high stakes. The Court might, for example, reinstate a law after a lower court had stopped its implementation. Cases on the shadow docket, in contrast to those on the merits docket, typically do not receive extensive briefing or a hearing. The decisions are accompanied by little to no explanation and often lack clarity on which justices are in the majority or minority. They are sometimes released in the middle of the night, creating a sense of palace intrigue.
Vladeck, a renowned legal scholar, is extraordinary in this thought-provoking examination of the shadow docket. With meticulous research and insightful analysis, Vladeck presents a comprehensive exploration of the shadow docket. He seamlessly weaves together complex legal concepts and historical context, ensuring that even those without a legal background can grasp the intricate details. His clear and concise prose makes the book accessible to a wide range of readers, from seasoned legal professionals to those with a general interest in understanding the inner workings of our justice system.
Vladeck provides a critical examination of the ways in which the shadow docket has evolved over time, its implications on individual rights, and the overall impact on the balance of power between the three branches of government. Vladeck presents a balanced perspective, carefully analyzing both the benefits and potential pitfalls of this judicial practice. He deftly navigates complex legal arguments while maintaining an engaging narrative. He provides historical context, scrutinizes landmark cases, and offers valuable insights into the implications of the shadow docket's decisions.
Vladeck, issues a call to action, urging readers to engage in critical discussions about the transparency and accountability of the shadow docket. He reminds us of the fundamental importance of a robust and independent judiciary in safeguarding our constitutional rights. This is an essential read for anyone seeking a comprehensive understanding of the shadow docket and its impact on our legal system. Whether one is a legal professional, a student, or a curious citizen, this enlightening. and indeed troubling, exploration will undoubtedly leave a lasting impression and inspire informed conversations about the future of our judiciary.
The process supports both informed decision-making and transparency. Almost every Supreme Court decision of significance, e.g. Brown v. Board of Education, Roe v. Wade, Citizens United v. Federal Election Commission, were decided on the merits docket. Most orders from the shadow docket, have little importance to anyone beyond the litigating parties. However, other shadow docket matters, such as requests to halt a lower court’s orders, can have high stakes. The Court might, for example, reinstate a law after a lower court had stopped its implementation. Cases on the shadow docket, in contrast to those on the merits docket, typically do not receive extensive briefing or a hearing. The decisions are accompanied by little to no explanation and often lack clarity on which justices are in the majority or minority. They are sometimes released in the middle of the night, creating a sense of palace intrigue.
Vladeck, a renowned legal scholar, is extraordinary in this thought-provoking examination of the shadow docket. With meticulous research and insightful analysis, Vladeck presents a comprehensive exploration of the shadow docket. He seamlessly weaves together complex legal concepts and historical context, ensuring that even those without a legal background can grasp the intricate details. His clear and concise prose makes the book accessible to a wide range of readers, from seasoned legal professionals to those with a general interest in understanding the inner workings of our justice system.
Vladeck provides a critical examination of the ways in which the shadow docket has evolved over time, its implications on individual rights, and the overall impact on the balance of power between the three branches of government. Vladeck presents a balanced perspective, carefully analyzing both the benefits and potential pitfalls of this judicial practice. He deftly navigates complex legal arguments while maintaining an engaging narrative. He provides historical context, scrutinizes landmark cases, and offers valuable insights into the implications of the shadow docket's decisions.
Vladeck, issues a call to action, urging readers to engage in critical discussions about the transparency and accountability of the shadow docket. He reminds us of the fundamental importance of a robust and independent judiciary in safeguarding our constitutional rights. This is an essential read for anyone seeking a comprehensive understanding of the shadow docket and its impact on our legal system. Whether one is a legal professional, a student, or a curious citizen, this enlightening. and indeed troubling, exploration will undoubtedly leave a lasting impression and inspire informed conversations about the future of our judiciary.
May 31, 2023
The Supreme Court rapidly went from a way HIGHER approval then Congress and the Executive branch to a race to the bottom.
IMHO, this book... this issue... is NOT getting the attention it deserves. It almost completely slipped under my radar and I'm a voracious reader/consumer of these sorts of books.
So if you've not heard the term "The Shadow Docket"... what is it? Is it a conspiracy theory (real or otherwise)?
Well, it's really kinda both in some sense. The shadow docket is a nickname for a very real thing. The claim (ostensibly the "theory": "How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic") is not as to whether it exists but the manner in which it is used.
I'll explain but... READ THE BOOK if you can.
Nominally, the Supreme Court has two dockets (case queues). Cases which are submitted for "judgment", and cases which are submitted for a quick emergency relief, typically pending a full judgement case (either in the SCOTUS or a lower court).
Because of the emergency nature of the cases on the shadow docket, the decisions to grant or deny pre-judgement relief/remedy have some rather interesting facets to them:
- Judgment NEEDN'T be offered with any publicly-disclosed legal reasoning
- Judgment needn't be signed
- The vote needn't be revealed
- The judgement is said to be non-binding on other cases (since it is not a legal ruling on the merits, but a remedy for a specific plaintiff)
- A party must demonstrate irreparable damage
- A party must demonstrate a plausible path to winning a legal judgment
Examples would be stays of execution, election results, civil liberty cases (abortion, religious liberty challenges, civil rights challenges such as voting, gay rights, etc.)
And in the past, it was common for the cases to be decided on very lopsided votes. But recently on contentious issues (such as the ones mentioned) the decisions seemingly were decided on ideologogical/political votes, and even the decision on WHETHER to review the cases seems to have been rapidly escalating to political/ideological legal decisions.
Moreover, often cases which seem lopsided given legal arguments (eventual legal results) and even prior court decisions seem to have been decided not on legal arguments but on ideological basis.
Why? The docket provides MULTIPLE ways to allow for "gaming":
- Justices can decide the cases on their ideological preferences WITHOUT having to provide legal reasoning, nor even attach their name to their vote.
- If you think you'd win or lose a case in a merits case (the merits docket), you can nonetheless impose your ideological preference for a short-term up until the merits case is heard by voting OPPOSITE to what your legal conscience tells you. And you do it entirely secretly.
And it's not like we can do away with the Shadow Docket because, as I said, it has a very legitimate and necessary purpose (temporary relief). The problem is not with the docket itself but how it is abused.
That's the short summary. But this book was an utterly fascinating read and I highly recommend it.
https://www.amazon.com/Shadow-Docket-...
IMHO, this book... this issue... is NOT getting the attention it deserves. It almost completely slipped under my radar and I'm a voracious reader/consumer of these sorts of books.
So if you've not heard the term "The Shadow Docket"... what is it? Is it a conspiracy theory (real or otherwise)?
Well, it's really kinda both in some sense. The shadow docket is a nickname for a very real thing. The claim (ostensibly the "theory": "How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic") is not as to whether it exists but the manner in which it is used.
I'll explain but... READ THE BOOK if you can.
Nominally, the Supreme Court has two dockets (case queues). Cases which are submitted for "judgment", and cases which are submitted for a quick emergency relief, typically pending a full judgement case (either in the SCOTUS or a lower court).
Because of the emergency nature of the cases on the shadow docket, the decisions to grant or deny pre-judgement relief/remedy have some rather interesting facets to them:
- Judgment NEEDN'T be offered with any publicly-disclosed legal reasoning
- Judgment needn't be signed
- The vote needn't be revealed
- The judgement is said to be non-binding on other cases (since it is not a legal ruling on the merits, but a remedy for a specific plaintiff)
- A party must demonstrate irreparable damage
- A party must demonstrate a plausible path to winning a legal judgment
Examples would be stays of execution, election results, civil liberty cases (abortion, religious liberty challenges, civil rights challenges such as voting, gay rights, etc.)
And in the past, it was common for the cases to be decided on very lopsided votes. But recently on contentious issues (such as the ones mentioned) the decisions seemingly were decided on ideologogical/political votes, and even the decision on WHETHER to review the cases seems to have been rapidly escalating to political/ideological legal decisions.
Moreover, often cases which seem lopsided given legal arguments (eventual legal results) and even prior court decisions seem to have been decided not on legal arguments but on ideological basis.
Why? The docket provides MULTIPLE ways to allow for "gaming":
- Justices can decide the cases on their ideological preferences WITHOUT having to provide legal reasoning, nor even attach their name to their vote.
- If you think you'd win or lose a case in a merits case (the merits docket), you can nonetheless impose your ideological preference for a short-term up until the merits case is heard by voting OPPOSITE to what your legal conscience tells you. And you do it entirely secretly.
And it's not like we can do away with the Shadow Docket because, as I said, it has a very legitimate and necessary purpose (temporary relief). The problem is not with the docket itself but how it is abused.
That's the short summary. But this book was an utterly fascinating read and I highly recommend it.
https://www.amazon.com/Shadow-Docket-...
June 18, 2023
2.5* rounded up to 3 due to the importance of the content.
This book was a hard read for a lay reader and disappointing as a result. The author, a legal scholar, did better with the topic in a podcast I’d heard than in this book.
The shadow docket has become increasingly controversial which is what drew me to the topic. But the endless listing of specific cases and outcomes along with an insistence on using legal terms rather than lay ones, made this a slog. It also blunted the impact of the criticality of this issue.
I did learn a lot about how the Court itself has evolved, the ways in which Congress has altered the Court over time, and the detriment being done by the use of the shadow docket rather than full case review in setting precedent. The clear partisan decisions being made by the right-wing supermajority is frankly terrifying as rights are eroded, often through the use of the shadow docket.
If you’re a lawyer or someone with deep knowledge of the legal system, this book would likely be a good choice. For the lay person, be prepared for trying to get the gist of it much of the time; it can be mind-numbing. Even the NYTimes reviewed cited sentences that require 4 reads and still might not yield much understanding.
This book was a hard read for a lay reader and disappointing as a result. The author, a legal scholar, did better with the topic in a podcast I’d heard than in this book.
The shadow docket has become increasingly controversial which is what drew me to the topic. But the endless listing of specific cases and outcomes along with an insistence on using legal terms rather than lay ones, made this a slog. It also blunted the impact of the criticality of this issue.
I did learn a lot about how the Court itself has evolved, the ways in which Congress has altered the Court over time, and the detriment being done by the use of the shadow docket rather than full case review in setting precedent. The clear partisan decisions being made by the right-wing supermajority is frankly terrifying as rights are eroded, often through the use of the shadow docket.
If you’re a lawyer or someone with deep knowledge of the legal system, this book would likely be a good choice. For the lay person, be prepared for trying to get the gist of it much of the time; it can be mind-numbing. Even the NYTimes reviewed cited sentences that require 4 reads and still might not yield much understanding.
January 1, 2024
I first heard about the shadow docket when author Stephen Vladeck discussed it on NPR’s Throughline Podcast. I was intrigued by his discussion of death penalty cases appearing before the Supreme Court and the questions of emergency relief discussed in the podcast. I requested his book from the library and it did not disappoint.
The Shadow Docket is an extremely thorough explanation of the Supreme Court’s recent turn to using unsigned, unexplained, emergency injunctions and rulings to achieve desired outcomes. Vladeck highlights the hypocrisy of these rulings while carefully explaining the procedural rules and norms that they violate. At times dense, the book nevertheless succeeds in explaining the dangers these unsigned emergency orders and injunctions pose to civil rights (as well as the legitimacy of the Supreme Court as an institution, but I don’t really care about that. F*** the Supreme Court).
If you are interested in learning more about the methods the conservative super-majority on the Supreme Court is using to inflict its politics on the population, this book is for you.
The Shadow Docket is an extremely thorough explanation of the Supreme Court’s recent turn to using unsigned, unexplained, emergency injunctions and rulings to achieve desired outcomes. Vladeck highlights the hypocrisy of these rulings while carefully explaining the procedural rules and norms that they violate. At times dense, the book nevertheless succeeds in explaining the dangers these unsigned emergency orders and injunctions pose to civil rights (as well as the legitimacy of the Supreme Court as an institution, but I don’t really care about that. F*** the Supreme Court).
If you are interested in learning more about the methods the conservative super-majority on the Supreme Court is using to inflict its politics on the population, this book is for you.
September 10, 2023
I'm a recent information junkie, and as I wasn't born or raised in the US, I've had to educate myself about how things work here. Or at least, how things are supposed to work. I've heard of shadow docket a lot, and I knew what it was, however, I didn't know why it was okay for the supreme court to use this method of arbitrarily ruling on subjects never discussed on merit. I hoped this book would help me with that gap, and it did a wonderful job of it. It also explained why when cases were ruled on merit, there would be some cases in which a conservative justice or two would cross to the other side and vote with the liberals.
But too, the court has to go a lot further than just discontinuing shadow docket rulings to reclaim their credibility. This book went to press before some of the SC judges' conflicts of interests came to light. Now that's an investigative book I'd love to read.
But too, the court has to go a lot further than just discontinuing shadow docket rulings to reclaim their credibility. This book went to press before some of the SC judges' conflicts of interests came to light. Now that's an investigative book I'd love to read.
May 23, 2023
Just a little to much in the legal weeds, but good information.
June 6, 2024
This was a good book to read after The Supermajority: How the Supreme Court Divided America. The Shadow Docket focuses on how the recent Supreme Court's conservative majority makes unsigned and unexplained rulings out of the public eye in order to swiftly pass laws about religious liberty, abortion, and voting rights. The dramatic expansion of emergency rulings, which have historically been used for stays of execution, has led to multiple late night, behind the scenes decisions with no chance of public hearings. Another concerning factor is that the Supreme Court has not "checked" by Congress since 1988, which is unsettling regardless of what political party you affiliate with.
If you want to read this book, I would recommend having a base line of understanding about how the Supreme Court operates and how federal jurisdiction works.
Having once held the Supreme Court in high regard, I have a lot of personal feelings about this book and ideas for court reform.
If you want to read this book, I would recommend having a base line of understanding about how the Supreme Court operates and how federal jurisdiction works.
Having once held the Supreme Court in high regard, I have a lot of personal feelings about this book and ideas for court reform.
May 24, 2024
Eh.
Vladeck is awesome. I've listened to his national security podcast for years (since before it was cool) and he's a brilliant guy. He could have written a book about a number of other super important topics. But he chose this: a minor issue that's been blown way out of proportion. Despite its cool name, the shadow docket isn't that big a deal. The court decides a few things mostly out of necessity without a full deliberation. Who really cares? It's a cool book of you're interested in this subject. The problem is the subject itself: it's just not nearly as important as all sorts of other things the court does.
Vladeck is awesome. I've listened to his national security podcast for years (since before it was cool) and he's a brilliant guy. He could have written a book about a number of other super important topics. But he chose this: a minor issue that's been blown way out of proportion. Despite its cool name, the shadow docket isn't that big a deal. The court decides a few things mostly out of necessity without a full deliberation. Who really cares? It's a cool book of you're interested in this subject. The problem is the subject itself: it's just not nearly as important as all sorts of other things the court does.
July 2, 2025
It’s really terrifying how the highest court in America has morphed into a tool for political motives. The opacity and inconsistency of their “shadow docket” rulings (rulings without oral arguments, without explanation or written opinion) have de facto created laws according to the whims of the majority on the bench. It’s also terrifying that the court now issues stays against lower court injunctions effectively allowing blatantly unconstitutional executive orders to go into effect while they wait for many months for the issue to be decided on its merits.
December 20, 2024
As a non-attorney worried about the state of our institutions, I was pretty compelled by Vladeck’s thesis. Pretttttty worried though about his two proposed solutions: 1) for the court to care enough to set aside the quick wins for long-game legitimacy and 2) for congress to effectively intervene. 👀
“I’ve been critical of the courts shadow docket behavior and I wrote this book not because I want to delegitimize the court, but because I fear the court is delegitimizing itself and that not enough people, the justices included, are caring.”
“I’ve been critical of the courts shadow docket behavior and I wrote this book not because I want to delegitimize the court, but because I fear the court is delegitimizing itself and that not enough people, the justices included, are caring.”
September 30, 2023
This book contains a wealth of information and anyone who is interested in our Democracy as a country should read it. It is a bit tedious with detail so I had to take breaks from time to time. It’s well written and helps to explain much about the evolution of the Supreme Court. The author starts at the beginning of the creation of the SC and takes us through how it has become what it is today. He uses specific topics such as the right to abortion and the Dodds case, the death penalty cases, etc. to illustrate the evolution of the SC going from a body that worked to resolve legal issues under our Constitution (matters of Law) to a political body that specifically bends to the political will of the party in power. The Shadow Dockett cases are those “decisions” rendered unsigned and unexplained and often only a sentence saying that whatever was asked is granted or not granted. The overall workload of the Court at times in history has been so overwhelming that there was no way that the 9 Justices could possibly hear argument and consider the number of cases; therefore, an expedited process for certain decisions was established. It was not meant to be “law defining” but more of a way to issue injunctions or stays until a reasoned decision can be forthcoming. However, it is being used as a way to influence the law without any reasoning given. Justice Kagan called decisions handed down under the Shadow Dockett as “unreasoned, inconsistent, and impossible to defend.” This tactic has been used in the gerrymandering cases in recent years, death penalty cases, the same-sex marriage cases for numerous states pre-Obergefell. Thirty-seven states had legal same sex marriage prior to the 2015 ruling establishing the right for all states. Capital Punishment cases played a key role in the Shadow Dockett increase in use. The book examines the key areas that have affected the Shadow Dockett or were affected by the Shadow Dockett.
June 20, 2023
I thought that I basically understood how the Supreme Court works. After reading this book, it’s practically embarrassing how much I didn’t know.
The purpose of The Shadow Docket is not to convince the reader that any particular Supreme Court decision was right or wrong. Rather, it is to show that for every fully argued, fully reasoned & explained decision based upon legal principles that is handed down, there are just as likely to be a dozen unexplained, unsigned orders given, upon which it is impossible to know whether the Court will hinge future decisions or whether they are to apply only once and never again.
Prof. Vladeck does a good job explaining what the powers of the Supreme Court were initially, how the cases that they heard were determined, and how that changed over time. Whereas the criteria for which cases the Court heard were once very specific, today the Court has practically unlimited discretion in deciding what to decide, and whether those decisions will become a part of the “merits docket” - those cases that get a full argument and a full explanation of the decision - or the “shadow docket” - those decisions handed down with as little explanation as the Justices so choose. Prof. Vladeck covers “shadow docket” decisions that have been handed down over the years in a handful of key areas, such as elections, capital punishment, and religious liberty, to illustrate how confusing and contradictory those unexplained decisions can be, and the legal chaos that they can cause.
It’s hard to know if there’s anything that can be done to mitigate the shadiness of the Court’s unchecked use of the “shadow docket,” though Prof. Vladeck has a few modest ideas. More than anything, I just think that it’s important for people to understand the processes involved as much as possible, because it’s always easier to behave poorly when you don’t feel the eyes of the people on you, isn’t it?
Anyway, rest in piss, Antonin Scalia.
The purpose of The Shadow Docket is not to convince the reader that any particular Supreme Court decision was right or wrong. Rather, it is to show that for every fully argued, fully reasoned & explained decision based upon legal principles that is handed down, there are just as likely to be a dozen unexplained, unsigned orders given, upon which it is impossible to know whether the Court will hinge future decisions or whether they are to apply only once and never again.
Prof. Vladeck does a good job explaining what the powers of the Supreme Court were initially, how the cases that they heard were determined, and how that changed over time. Whereas the criteria for which cases the Court heard were once very specific, today the Court has practically unlimited discretion in deciding what to decide, and whether those decisions will become a part of the “merits docket” - those cases that get a full argument and a full explanation of the decision - or the “shadow docket” - those decisions handed down with as little explanation as the Justices so choose. Prof. Vladeck covers “shadow docket” decisions that have been handed down over the years in a handful of key areas, such as elections, capital punishment, and religious liberty, to illustrate how confusing and contradictory those unexplained decisions can be, and the legal chaos that they can cause.
It’s hard to know if there’s anything that can be done to mitigate the shadiness of the Court’s unchecked use of the “shadow docket,” though Prof. Vladeck has a few modest ideas. More than anything, I just think that it’s important for people to understand the processes involved as much as possible, because it’s always easier to behave poorly when you don’t feel the eyes of the people on you, isn’t it?
Anyway, rest in piss, Antonin Scalia.
August 29, 2023
This poor volume got caught in that worst of all traps, it's already out of date.
Written before the Dobbs ruling, Vladeck uses this book to explain just how unusual and ahistorical the Trump-era court was in its approach to avoiding certiorari cases achieve short-term political outcomes and avoiding merit review cases that would overturn precedent and risk political disaster. Vladeck describes a Court that still generally operated as it had since the 1920s where justices would play coy about their political agenda.
The period leading up to, and immediately after, the appointment of Amy Coney Barrett is when this book was published and that turns out to have just been a breather. The calm before the conservative bench set about blowing up case law in Civil Rights, Privacy, Affirmative Action, Abortion Access, the primacy of the FDA in determining drug safety, etc, etc... Why just recently Sam Alito expressed an opinion that the Supreme Court stands apart from the system of checks and balances written into the Constitution and so is immune from interference by Congress. Meanwhile both Alito and Clarence Thomas have proven to be the pay-for-play hacks some of us suspected all along.
This is not a court operating like the Rehnquist Court.
All this since Vladeck wrote this book in 2022. It's been a quick revolution. Honestly, the Shadow Docket is barely even a concern anymore given that the Court is now emboldened to do whatever it wants openly and dares everyone else to do something about it.
Written smartly and with excellent background on how the court used to behave before it went stark raving, but not so good as a guide to where the court is now since that is an entirely different animal.
Written before the Dobbs ruling, Vladeck uses this book to explain just how unusual and ahistorical the Trump-era court was in its approach to avoiding certiorari cases achieve short-term political outcomes and avoiding merit review cases that would overturn precedent and risk political disaster. Vladeck describes a Court that still generally operated as it had since the 1920s where justices would play coy about their political agenda.
The period leading up to, and immediately after, the appointment of Amy Coney Barrett is when this book was published and that turns out to have just been a breather. The calm before the conservative bench set about blowing up case law in Civil Rights, Privacy, Affirmative Action, Abortion Access, the primacy of the FDA in determining drug safety, etc, etc... Why just recently Sam Alito expressed an opinion that the Supreme Court stands apart from the system of checks and balances written into the Constitution and so is immune from interference by Congress. Meanwhile both Alito and Clarence Thomas have proven to be the pay-for-play hacks some of us suspected all along.
This is not a court operating like the Rehnquist Court.
All this since Vladeck wrote this book in 2022. It's been a quick revolution. Honestly, the Shadow Docket is barely even a concern anymore given that the Court is now emboldened to do whatever it wants openly and dares everyone else to do something about it.
Written smartly and with excellent background on how the court used to behave before it went stark raving, but not so good as a guide to where the court is now since that is an entirely different animal.
June 5, 2023
Aghghghghagh! This is a very difficult book to read/listen to; it's quite intense and extremely thought-provoking. And for those of us who have extreme feelings about the situation, it's very difficult to separate them from just reporting on what is said.
The writing points out the use of a particular format for Supreme Court to decide cases, called the Shadow Docket, reaching the end presents inconsistent, unsigned, and unexplained decisions. The book also indicates many incongruenciies in judicial law and practice! I couldn't listen straight through; I had to stop regularly to process and get it all out in my mind temporarily.
My feelings on the situation are strong and biased, so I think it's somewhat unfair to go into depth about that. I am neither a lawyer nor a politician, so my thoughts are probably inconsequential. Anyway. But I feel the book is very important pointing out aspects of our current judicial agencies and their processes. I got a lot from the book.
The writing points out the use of a particular format for Supreme Court to decide cases, called the Shadow Docket, reaching the end presents inconsistent, unsigned, and unexplained decisions. The book also indicates many incongruenciies in judicial law and practice! I couldn't listen straight through; I had to stop regularly to process and get it all out in my mind temporarily.
My feelings on the situation are strong and biased, so I think it's somewhat unfair to go into depth about that. I am neither a lawyer nor a politician, so my thoughts are probably inconsequential. Anyway. But I feel the book is very important pointing out aspects of our current judicial agencies and their processes. I got a lot from the book.
November 12, 2023
Dang, this is a doozy of a book. Vladeck covers a significant amount of history of the Supreme Court, while also putting a sustained focus on the most recent years and actions. He does so in language that is easy for all to understand so that anyone can access this important information (this lack of public accessibility being something he criticizes the Court of). While many on the right might see this is unfair criticism by someone that is more progressive, Vladeck openly admits to his bias against the current Court’s most recent decisions, while also pointing out that people on both sides of the aisle should be concerned about the eroding of trust and faith in the judicial process that the Court’s overuse of the Shadow Docket is causing. We should all worry about the very future of our democracy and its principles should we allow the Supreme Court to be so influenced politically and to function in such a partisan manner without checks.
June 4, 2023
Vladeck gets far more stars from lawyers, most students, political and law academians than from readers like me who have an interest in understanding the new controversial way the court is behaving than to practice in front of it
The book is drenched in legalese and terms that require My google wizard to interpret. Certiorari is everywhere in the book and the under explained Shadow Docket
Stephen if you are going to write to the law review then you do great. But if you really as you say?want to educate and involve the public you need a co-author to show you how to turn your writing into a more understandable and interesting appeal to us common folk.
I skipped through a lot of text out of boredom.
Try a rewrite for us
The book is drenched in legalese and terms that require My google wizard to interpret. Certiorari is everywhere in the book and the under explained Shadow Docket
Stephen if you are going to write to the law review then you do great. But if you really as you say?want to educate and involve the public you need a co-author to show you how to turn your writing into a more understandable and interesting appeal to us common folk.
I skipped through a lot of text out of boredom.
Try a rewrite for us
January 16, 2024
This wasn't a light, easy Sunday read, in the content or style sense. It approaches academic writing style, and I found myself zoning out a lot. However, when I was focused, I learned that I apparently knew nothing about how the originally established supreme court operated. And it's nothing like the current court which seems to operate on just vibes... The post-Taft vibes court, which remains virtually unchecked by Congress, wouldn't recognize the founding Father's court.
Every American should be aware of what's going on in the supreme court, but not sure if there's a spark notes version they could turn to instead, because I don't think the average Joe is going to enjoy this read.
Every American should be aware of what's going on in the supreme court, but not sure if there's a spark notes version they could turn to instead, because I don't think the average Joe is going to enjoy this read.
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