Friday, September 03, 2021

The Problem with the Shadow Docket

Gerard N. Magliocca

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.


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