E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My view is that the main problem with the "shadow docket" is that the Supreme Court is deciding consequential matters without full briefing and argument. This is a departure from past practice and, I must say, is little more than the current Justices being lazy. Let me give some examples.
In the Steel Seizure Cases, President Truman issued his executive order in April 1952. A month later, the Supreme Court heard oral argument in the case. In the Pentagon Papers case, the Nixon Administration sought a prior restraint against publication in June 1971. Two weeks later, the Supreme Court issued its decision after full argument and briefing. I could go on describing cases where the Court scheduled a special summer session or granted expedited certiorari to decide a dispute properly.
Today, I don't think that the Court would handle these cases in the same way. I think that there would just be a ruling on an emergency request for or against a stay without argument or briefing. Why is that? Part of the issue is that the unwritten "summer vacation" clause in Article III is swaying the Court not to hold oral arguments in July, August, or September. Another factor is that individual Justices no longer hold in-chambers arguments on emergency matters. This would be better than having no argument or full briefing at all and was standard practice for a long time, subject to review by the full Court.
The symbol inside the Supreme Court building is the sure-footed tortoise. Not the lazy hare.