(Alliance for Justice) —
The first Monday of October signals the start of the spooky season, also known as the beginning of the Supreme Court’s new term. But even though the Court has been in recess since dropping its blockbuster decisions at the end of June, it hasn’t been all vacations and book promotions for the justices. In fact, the Court has issued some rather important decisions you may not have heard about.
In addition to the cases the Court accepts to its merits docket and hears throughout its term, the Court also has what’s called the “emergency docket,” or more colloquially known as the “shadow docket.” This is a mechanism for the Court to weigh in even during a recess to address cases moving through the lower courts.
The “shadow docket” moniker reflects not only that these cases are not briefed or publicly argued, but also the fact that the Court does not have to explain its reasoning nor spell out which justices supported the decision. As University of Texas law professor Stephen Vladeck has emphasized in his writing about the shadow docket, the Court’s conservative majority is abusing this docket in unprecedented ways without even having to sign their names to the rulings. Thus, the Court is issuing major decrees from the shadows.
This summer, the Court issued shadow docket rulings on what could prove to be major cases on voting rights, LGBTQ+ protections, student debt, and reproductive rights, just to name a few.
Arizona’s Voting Restrictions
With the election approaching quickly, the Supreme Court weighed in on a case challenging an Arizona law (HB 2492) requiring proof of citizenship be provided when registering to vote via a state form separate from the standard form to register for federal elections. A district court judge had put the law on hold, and the Ninth Circuit Court of Appeals ultimately agreed with that order. But when the Republican National Committee and Republican state lawmakers appealed to the Supreme Court, they got a more favorable outcome.
The Court issued a divided order in August that allowed the law to be reinstated while the case proceeds, but it still required that voters who registered with the standard federal form be allowed to vote without providing proof of citizenship. What we know from the order is that the liberal justices, along with Justice Barrett, would have kept the entire law blocked, while Justices Thomas, Alito, and Gorsuch would have reinstated the entire law. We’re left to deduce that Chief Justice Roberts and Justice Kavanaugh created the split ruling — with no explanation as to why.
LGBTQ+ Protections in Education
Back in 2020, the Supreme Court ruled in a case called Bostock v. Clayton County that Title VII’s employment protections, which prohibited discrimination on the basis of “sex,” protected LGBTQ+ people from discrimination. The Department of Education, recognizing that Title IX’s education protections also protect on the basis of “sex,” issued new LGBTQ+-inclusive guidance consistent with Bostock. Conservatives, including many state attorneys general, unsurprisingly filed multiple suits challenging the guidance.
In an ostensibly 5–4 decision, the Court agreed to block the guidance. In fact, they went further than what was asked of them and blocked not only the relevant LGBTQ+ protections, but also the protections for pregnant and postpartum students, such as access to lactation spaces and prohibitions on retaliation. Justice Sotomayor, dissenting for the liberal justices and Bostock author Gorsuch, criticized the order as “overbroad.” Nowhere in the order — or dissent — was Bostock even mentioned.
Student Debt Relief
Over the course of his administration, President Biden has tried repeatedly to use the power of his office to address the student debt crisis. After the Court blocked the 2022 effort to cancel up to $400 billion in student loans, the White House followed up with the SAVE plan, which placed limits on most borrowers’ payments and prevented interest from accruing so long as borrowers made those monthly payments. Conservative states brought challenges to the new plan, and multiple lower courts agreed to block the plan.
In a pair of orders at the end of August, the Supreme Court declined to lift these injunctions while the cases proceed. The orders offered no explanations and no dissents. In the meantime, the lower court orders are creating absolute chaos for the Department of Education and the more than eight million borrowers who had enrolled in SAVE before it was blocked, potentially also endangering many borrowers’ eligibility for loan forgiveness.
Implications of Abortion Bans
The federal government offers states family planning grants under Title X, but a condition of that funding is that pregnant patients be referred to a nationwide hotline that, among other information, explains how to access an abortion and provides referrals. The state of Oklahoma, which has banned abortion in the wake of Dobbs, refused to abide by this provision, so the federal government took back a $4.5 million grant. Oklahoma sued, seeking to keep the money without providing access to the federal hotline.
In yet another unsigned order from the shadow docket, the Court ruled against Oklahoma in early September. While the state’s challenge proceeds, it is not entitled to the grant money. Justices Thomas, Alito, and Gorsuch — all of whom helped overturn Roe v. Wade — would have sided with Oklahoma.
Matters of Life and Death
The shadow docket also addresses criminal cases, but one of the only criminal circumstances that warrants the Court’s emergency consideration is impending death penalty executions. The Court’s conservatives are usually willing to let states follow through with capital punishment rather than entertain motions that would delay the execution for further consideration. As we recently learned, that includes even when the individual appears to be innocent.
On September 24, the Court declined to stay the execution of Marcellus Williams. The liberal justices indicated their dissent, but nobody explained their reasoning. This is despite DNA evidence that appeared to exonerate Williams of the 1998 murder he was convicted of. His prosecutors, jurors, and even the family of the victim opposed his execution. Thanks to the Supreme Court’s blessing not to further consider his case, however, the state of Missouri proceeded to kill Williams later that day.
Contemplating the Shadow Docket
It’s important to remember that the shadow docket is functioning year-round, with the Court weighing in on some major issues with huge implications without any public accountability. While the news isn’t always bad, this summer’s orders demonstrate just how politicized the docket has become. Some laws and policies take effect during litigation while others don’t. Why? The Court refuses to say. But we do know that the result too often reflects the political leanings of the justices.
There are, however, options to help finally shine some more light on the shadow docket. Earlier this year, Sen. Richard Blumenthal introduced legislation that would require the Court to treat the shadow docket more like its merits docket, providing explanations for the decisions and accounting for each justice’s vote. It would be one more step towards creating ethics, transparency, and accountability for a Court with a conservative majority that has gotten too comfortable issuing major decisions without explaining itself.
Zack Ford is the Senior Manager of Press and Editorial Communications at Alliance for Justice.
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