During the Trump administration and especially throughout the COVID-19 pandemic, the Supreme Court decided an increased number of issues through emergency applications. These are actions filed outside of the Court’s regular docket — sometimes after hours, and the Court acts on them quickly. Because of these actions’ tendency to go under the radar, University of Chicago law professor William Baude called them along with “summary decisions” as the Supreme Court’s “shadow docket,” and the name stuck.
What is the Shadow Docket?
The Shadow Docket includes emergency applications for relief and “summary decisions.” Emergency applications request temporary relief from the Court. A party can request emergency relief if it believes it will face irreparable harm when a lower court order goes into effect.
A summary decision is a decision the Court makes by turning a petition for certiorari (petition to hear a case) into a decision on the merits. Instead of hearing arguments like the Court normally would, the justices go ahead and accept the decision at the same time that they make a determination on the parties’ arguments. The Court feels strongly enough about its decision that it does not request oral arguments from the parties.
This report focuses on emergency applications, explaining how they are different from decisions in the Court’s regular docket.
An emergency application is different from a case on the merits in several key ways. First, an emergency application is a request for temporary relief. A party seeks a temporary stay of a lower court order, and that stay usually ends when either the Supreme Court denies a petition for certiorari, or once the Supreme Court decides the case on the merits. In the former situation, the lower court order goes back into effect, and in the latter, the Court’s merits decision rules.
Additionally, the Court reviews an emergency with different criteria than it would a merits case. And the process within the Court (how the application is handled) is different than the process for the Court’s regular docket.
Emergency stay applications are filed quickly, and they are decided quickly compared to the regular docket. Where a regular decision on the merits takes months from the filing of a cert petition, an emergency stay application can receive a decision within days or even hours.
Orders on emergency applications often do not come with a written opinion, or an explanation for the decision. People criticize the increased use of emergency applications because the decisions lack transparency.
Criteria for Granting Emergency Stays
In an emergency stay application, a party requests relief from a lower court order that is about to be enforced. The party argues to the Supreme Court that the lower court got it wrong and that if the order goes into effect, the party will face irreparable harm. Specifically, the party must get the Court to rule the following:
1. that there is a “reasonable probability” that four Justices will grant certiorari, or agree to review the merits of the case;
2. that there is a “fair prospect” that a majority of the Court will conclude upon review that the decision below on the merits was erroneous;
3. that irreparable harm will result from the denial of the stay;
4. finally, in a close case, the Circuit Justice may find it appropriate to balance the equities, by exploring the relative harms to the applicant and respondent, as well as the interests of the public at large.Public Information Office, Supreme Court, A Reporter’s Guide to Applications Pending Before the Supreme Court of the United States.
Process for Resolving Emergency Applications
A party files the application to one Supreme Court justice, who is assigned to applications from the relevant court region (the Circuit Justice). The application is an argument by the filing party on paper, meaning the Court does not hear oral arguments. The justice assigned to the application can request the opposing party to file responsive arguments.
The Circuit Justice may act on the application on her own, or she may refer it to the full Court for consideration. If the full Court considers the case, five justices must agree to grant the application (a stay of the lower court order).
If the Circuit Justice denies an application for a stay on her own, the losing party may renew its request to another justice of the applicant’s choice. In theory this process could continue until a majority of the Court has denied the application, but to avoid this prolonged process, the next justice will usually refer the matter to the whole Court.
If the Circuit Justice acts on her own to grant the stay, the opposing party may file a motion to have the whole court reconsider the matter. According to the Public Information Office, these motions are rarely granted.
Timeline: Regular Versus Shadow Docket
For the Court’s regular docket, it accepts petitions for certiorari filed within 90 days of the lower court judgment. The Court may act on the petition quickly (within a month) or take longer (several months) to decide whether to grant the case.
After the Court grants a cert petition, it schedules the oral argument for 2 to 3 months later (or into the following term, which adds a few months). After the Court hears the case, it makes a decision either quickly (a month or two out), or it holds the case for a few months, as late as June, which is when (in a normal year) the Court issues the last of its regular docket decisions.
On average, a regular merits case takes about 6 months to be resolved from the time the party files a petition for certiorari.
Emergency applications are resolved much quicker. They can be filed moments after a lower court decision, even including non-business hours. The Circuit Justice (or full Court, as the case may be) can act on the application within days or even hours. And the decision can come out in the middle of the night if that’s when the Court issues it.
When Temporary Relief Becomes Lasting
When the Court (or a Circuit Justice) grants an application for a stay, the order will state for how long the stay will remain in effect. Usually, the stay ends if the Court denies the application for certiorari on the case, or if the Court accepts the case, once the decision comes out.
Despite that the stay provides only temporary relief, in practice, the relief can have permanent effect. In an emergency stay application relating to procedures for an upcoming election, for example, if the election is sufficiently close in time, the Court will not hear the merits case before the election takes place. Thus, the emergency application is the final say.
In 2020, the Court received a number of emergency stay applications involving pandemic-related state election procedures. For example, in Idaho a federal court relaxed rules for ballot initiatives, giving a group additional time to collect signatures, due to the pandemic. The state filed for an emergency stay of the order, and the Supreme Court granted it. The Court also granted a stay against a Wisconsin federal court order which would have relaxed the timeline for counting absentee ballots for the November 2020 election. In both cases, the emergency application became the final say.
In Rhode Island, however, the Supreme Court determination went the other way. A federal court had relaxed state requirements for witness signatures on mail-in ballots for the September 2020 election. The Republican National Committee sought a stay of the order, wishing to reinstate the signature requirements, and the Supreme Court denied the request.
In another context, an emergency stay ruling became precedential in lower courts around the country. The stay application arose from an executive order issued by New York Governor Cuomo limiting the number of people who could attend church services during the pandemic. The Supreme Court ruled Cuomo’s order was likely to violate the “free exercise” clause of the First Amendment and issued an injunction to block the order. After the decision, a number of courts around the country ruled to follow the same reasoning.
Increase in Polarization: Trump Era
A number of news sources have pointed out that the number of emergency stays issued has increased in the Trump era, and the decisions are more polarized than the Court’s regular docket. In the October 2019 term, the number of 5-4 shadow docket decisions nearly equaled the number of 5-4 decisions in the much larger regular docket for the term.
Critics call the increased use of the shadow docket “misuse,” echoing the words of Ginsburg and Sotomayor as they dissented from emergency stay orders.
Supreme Court Rules, Cornell Legal Information Institute
Supreme Court Reporter’s Guide, Public Information Office
Mark Walsh, The Supreme Court’s ‘shadow docket’ is drawing increasing scrutiny, ABA Journal (Aug. 20, 2020).
David Cole, Opinion: The Supreme Court’s dangerous ‘shadow docket’, Washington Post (Aug. 19, 2020).