New book explores how the Supreme Court uses its ‘shadow docket’ to change the law

Washington CNN — The Supreme Court has increasingly used emergency orders to shape the law in cases concerning a variety of hot-button issues, a move that has quietly given the court more power over the years, CNN Supreme Court analyst Steve Vladeck says in a new book released Tuesday on the so-called “shadow docket.” Officially known as the emergency docket, it has come to be known by court watchers as its shadow docket since unsigned and unexplained orders can allow the justices to act on a case while also shielding the legal analysis behind the decision and the vote count. “In just four years Trump’s solicitor generals sought emergency relief from the Supreme Court a total of forty-one times – a more than twentyfold increase over Bush’s and Obama’s SGs combined,” Vladeck, also a University of Texas Law professor, writes in “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” The “increasing prevalence and public significance” of the shadow docket, Vladeck writes, “reflects a power grab by a court that has, for better or worse, been insulated from any kind of legislative response.” Behavior by members of the Supreme Court, both on and off the bench, has come under intense scrutiny in recent months, with criticism being aimed at everything from the conservative majority’s decision last June to eliminate nearly 50 years of abortion rights to a lack of transparency from some justices around their annual financial disclosure forms. Vladeck adds that because President Joe Biden undid many of Trump’s controversial policies, challenges to those policies that were before the Supreme Court became moot, which meant “the stay rulings were typically the justices’ only involvement in these disputes.” He argues that the justices’ decision to use the shadow docket in controversial cases has further politicized a court that, up until recently, had been viewed by the public as the only nonpartisan branch of government. Conservative Justice Samuel Alito in 2021 rejected the use of the term in a lecture at the University of Notre Dame, saying he wanted to “dispel some imaginary shadows” and push back on a notion that the court was acting “sneaky or dangerous.” He said the recent criticism was geared to suggest “that a dangerous cabal is deciding important issues in a novel, secretive, improper way, in the middle of the night, hidden from public view.” The court’s liberal members have also occasionally dished out complaints about the shadow docket in recent years, including in September 2021, a few weeks before Alito’s speech, when they angrily publicly dissented from the court’s decision to deny a request from Texas abortion providers to freeze a state law that bars abortions after six weeks.