The Supreme Court's "Shadow Docket"

In 2023, Supreme Court expert Stephen Vladeck published a book titled, "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic". I have not read the entire book, but I have read lengthy excerpts and a number of summaries. Based on that exposure, I am not sure that there could possibly be a more prescient book about today's Supreme Court. It would literally be impossible to understand what is going on with the Supreme Court these days without understanding the "Shadow Docket." Moreover, this has become increasingly true after Vladeck published his book. Just yesterday, the Court again issued a ruling in regard to an emergency application without the majority providing a single word of explanation. In essence, we know what the justices concluded, but we don't know how or why they arrived at that conclusion. This provides plenty of room for misunderstanding or to mislead about the decision. There are a number of distinctly negative ramifications from this practice.

I first became acquainted with the term "shadow docket" through Vladeck's work. However, the phrase was apparently coined by law professor William Baude. Most of us are familiar with what is known as the Court's "merits docket". These are cases that the Court has agreed to hear. There will be briefs, arguments, and a written opinion (and probably dissents and concurrences as well). However, a relatively small number of cases make it to the merits docket. Outside of those cases, there are a host of measures that require Court attention. These can be cases that have been appealed, stays or injunctions, summary decisions, or other matters. The procedures for handling these issues are much more limited and often result in short, unsigned rulings. Increasingly, the majority is not providing any explanation at all of its decisions. The Court led by Chief Justice John Roberts, in a break from precedent, has used the shadow docket for consequential rulings. Moreover, the Roberts Court has demonstrated a distinct trend in which its shadow docket rulings were unfavorable to former President Joe Biden and favorable to cult leader, convicted felon, and failed President Donald Trump. Because the rulings are often issued without explanation, it is impossible to determine whether these decisions are the result of sound legal judgement or partisan political bias.

Yesterday, the Court issued a ruling regarding the restructuring of the Department of Education. In March of this year, Trump issued an executive order requiring the Secretary of Education to "take all necessary steps to facilitate the closure of the Department of Education." When the Secretary, Linda McMahon, announced a reduction in force involving 1,378 employees, several states and other parties went to a federal court in Massachusetts to argue that the move was unconstitutional. A federal judge then issued a preliminary injunction barring the Trump administration from implementing the RIF or making other moves to dismantle the Department. The Trump administration then requested a stay of that decision, in other words, Trump requested that the restructuring be allowed to proceed. Yesterday, a majority of the Supreme Court granted that stay, allowing the administration's actions to go ahead. What the Court did not do — and this is important — is rule that the restructuring is constitutional. The underlying issues have not been decided. While Justice Sonia Sotomayor issued a dissent, with Justices Elena Kagan and Ketanji Brown Jackson joining her, the majority did not provide a single word of explanation.

Vladeck has been tracking such rulings and has found that since April 4, the Court has issued 15 rulings on emergency applications filed by the Trump administration and ruled in favor of Trump in all 15 rulings. The Court has provided majority opinions in only 3 of these cases. In contrast, the Court frequently ruled against Biden in similar cases. Both Vladeck and Chris Geidner, in the excellent "Law Dork" blog, compared yesterday's decision to one involving Biden's attempt to forgive student loans. In the loan case, Roberts wrote for the majority to say that the Secretary of Education does not have the power to "rewrite" a statute "from the ground up." Yet, in the case of the Department of Education, which is mandated by the law, the Court seems to be allowing Trump to, if not rewrite, completely ignore statutes. This inconsistency could possibly be explained, but the majority did not bother to do so.

I again want to emphasize that the Court did not address the underlying issue as to whether or not the Trump administration is acting lawfully. In theory, the majority would not allow illegal actions to continue. But, in fact, rather than in theory, Trump's actions have not yet been ruled to be illegal. Legal actions to prevent — or reverse if things reach that point — Trump's dismantling of the Department of Education will continue. Presumably, at a later date, the same majority that granted yesterday's stay could rule that the administration's actions were unlawful. Sotomayor, for one, does not seem optimistic that such an event will occur. In her dissent, she wrote, "When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it." She goes on to write, "The majority is either willfully blind to the implications of its ruling or naive, but either way, the threat to our Constitution’s separation of powers is grave." In Sotomayor's view, as well as the view of any number of other legal scholars, the legal issues in this case are not difficult. Congress created the Department of Education by passing legislation which was signed into law, and Trump simply does not have the right to ignore that law. Again, we have no idea what the majority believes because they did not bother to tell us.

As I mentioned earlier, one ramification of the majority failing to provide an explanation for its decision is that the decision can easily be misconstrued. Shortly after the decision was made public, a White House spokesperson said, that the Court had recognized that Trump has "absolute constitutional authority to direct and manage its agencies and officers." That is not at all what the Court determined. Certainly, the implication is there, but implications are not laws. But we can be sure that Trump will be acting on the implication rather than the letter of the decision. A simple explanation could have avoided this outcome (or, alternatively, confirmed it).

An important question is why the Court is behaving in this manner. To an extent, it allows justices to have their cake and eat it too. They can side with Trump on the procedural issues and avoid any conflicts that opposing him would provoke, but use the explanation that the underlying issue has not yet been resolved as a fig leaf to cover what appears to be complete and total capitulation. Refusing to provide explanations of the decisions adds to this ambiguity. Complete and total capitulation may, in fact, be what will ultimately occur. But some observers theorize that the justices are keeping their powder dry for more important battles. Vladeck considered this possibility last week. He does not find the theory convincing because the majority, as Sotomayor says, is enabling illegality. At some point, the court will have to draw a red line that Trump will not be allowed to cross. But by the time the underlying issue reaches the Court, it may well be too late. As Vladeck writes, "The question is not just where that red line actually is, but how much of an ability the Court will still have to act if and when it tries to draw it." Is the Court really going to tell Trump that it is illegal to dismantle the Department of Education if it has already been dismantled?

Another possibility is that Roberts and his colleagues assume that Trump is more than capable of ignoring their rulings. If they had rejected the request to stay the Massachusetts ruling, Trump may well have carried on with dismantling the Department regardless. What would the court do then? Trump is dangerously close, if not well over the line, of violating earlier decisions. If a pattern of rulings against Trump simply being ignored develops, the Court will lose its relevance. What then? Roberts probably doesn't want to find out. By all appearances, he prefers to kick that particular can as far down the road as possible. At some point, the Court will probably have to determine whether Trump can lawfully dismantle the Department of Education. That day was not yesterday. Who knows when that day will come or if it will come at all? Roberts may well see a punt as the best play in this particular game. The danger, of course, is that in seeking to maintain the Court's relevance, Roberts is risking its legitimacy. Ruling for Trump in 15 out of 15 cases certainly conveys the impression that today's Court is nothing more than a rubber stamp for the President.

The Roberts Court is increasingly relying on the shadow docket to decide important and consequential legal matters. The Court has also engaged in a habit of issuing rulings without accompanying explanations. As a result, others are left to guess at the majority's motivations. The existing pattern of decisions suggests, not to put too fine of a point on it, that the majority is completely in the bag for Trump. If the rulings are the result of sound legal judgement, the justices have certainly done nothing to convey it. But, the Court may purposely be engaging in a sort of strategic ambiguity in which its battles are chosen carefully. However, the more that the Court gives Trump an inch, fully knowing that he will take a mile, the more the failure to provide explanations appears to reflect simple cowardice.