Some Not Very Focused Preliminary Thoughts About the Shadow Docket (But Leading Up to Some Fundamentals about Constitutional Law)

Mark Tushnet

The following thoughts were provoked by and during an interesting Roundtable chat convened by Neysun Mahboubi for something called the "Law and Governance" whatever (remember, I'm an "old" and that reaches the limit of what I can say about the event).

1. The shadow docket can't be eliminated. There's always going to be a need for some mechanism for immediate intervention by the Supreme Court to do something about an urgent problem (an impending execution, for example). And a great deal of what the justices have to do will have to be discretionary (to deal with claims that, while not frivolous, are quite unlikely to succeed, for example). I'm old enough to remember controversies associated with the as-et-unnamed shadow docket in connection with efforts to get the courts to "do something" about the Vietnam War, where "doing something" required really innovative doctrinal moves. So I doubt that there's a statutory "fix" to deal with what many see as today's problems with the shadow docket.

2. But something can be done by the Court itself. Here's a suggestion: When the Court divides sharply (5-4 or 6-3), the justices should grant review, expedite argument, and issue an order preserving the status quo. The first two steps are what the Court did in the capital case just granted.

3. But what status quo to preserve? The status quo ex ante the litigation, or the status quo post whatever action the lower court has taken (and which lower court -- the trial court or the appeals court)? In capital cases you want it to be ex ante the litigation (with an execution date set but not implemented until the conclusion of litigation). In the SB8 case critics want it to be, post the decision by the trial court to schedule a preliminary injunction but ante the decision by the court of appeals to order a stay of that hearing. (In most of the Vietnam cases people on my side of the political spectrum wanted it to be, post whatever favorable decision some rogue district judge issued.)

4. A thought (really tentative) about how to choose which status quo to preserve: Look at what contested legal questions you'd have to treat as serious but unsettled, and enter an order that "resolves" the fewest and/or least significant of them (where "resolves" means something like "expresses a tentative judgment that there's a decent chance that the beneficiary of the order will prevail on the merits"). That's not quite complete, because "likelihood of success on the merits" is only one consideration; the degree of irreparable harm pending final resolution of the case is another. (The Court's practice in capital cases suggests that the balance quite often, but not always, tips in favor of postponing the execution pending final decision.)

5. The problem with that suggestion, for folks on my side of the political spectrum, is that it might not produce a different result in the SB8 case. To vacate the court of appeals' order the Court would have "resolve" (in the sense I've specified) a pretty tricky question about whether Ex parte Young might end up being extended to cover the bounty-hunters. (I'm more or less satisfied that it should be, but there's no doubt that it's unsettled.) Not vacating the order wouldn't require "resolving" any unsettled questions. The difficulty then comes with the "irreparable harm" question, and I'm afraid that dealing with it is simply going to reproduce the political controversy the actual order generated. (Briefly, people on my side will say that there's enormous and irreparable harm to women in Texas who want to obtain post-heartbeat, pre-viability abortions; people on the other side will say that for each such woman there's a fetus who is [as they see it] going to be executed -- and there's the harm to the sovereign interests of the people of Texas as represented [imperfectly] in the legislature and the Governor's office.) 

Or, put another way, I doubt that here as elsewhere there's a politically neutral way to deal with both the substance of constitutional law (no news here) and its procedural implementation (no news here to people who understood what Felix Frankfurter was after in creating the field of federal jurisdiction, but maybe news to those who have internalized the watered-down version offered in the Hart & Wechsler tradition -- but that's another and even more complex story).