The Shadow Docket: the Hidden Side of Supreme Court Judicial Power

The Supreme Court has recently come under fire for its use of the ‘shadow docket’ to flip a lower court order to redraw Alabama’s congressional map; the racial implications of which  have catapulted it to the headlines. The main point of contention is whether Alabama should have one, or two districts with a high likelihood of electing Black representatives to Congress. Alabama contains seven congressional districts and has a Black population of 27%; however, the congressional map proposed by the state legislature only had one district where Black Americans of voting age were in the majority. The lower court ordered the state legislature to redraw the map, as they believed it was not compliant with Section 2 of the Voting Rights Act. 

In 1982, Congress expanded Section 2 of the Voting Rights Act to disallow practices that did not afford racial minorities an “equal opportunity to participate in the political process.” The Alabama lower court believes that this extension of Section 2 covers the practice of racial gerrymandering and therefore concluded that the state legislature needed to reconsider their map.

The Supreme Court decided to take this case through the use of the ‘shadow docket,’ reversing the lower court’s ruling. The conservative supermajority that currently sits on the Supreme Court overruled Chief Justice Roberts and the liberal wing in a 5-4 vote. But what is the shadow docket and why is it receiving such harsh criticism?

The shadow docket is where cases go that the Supreme Court wants to see on an accelerated timeline—a ‘fast track’ of sorts—rather than the typical merit docket that can take months to produce briefs and oral arguments. This process normally happens during the Court’s recess. 

Yet while the practice has existed for over half a century, it has evolved dramatically over the past five years. The Supreme Court has increasingly used the shadow docket to rule on cases with political and important constitutional questions. The original precedent for using this expedited procedure was to guarantee a legal pathway for litigants who would experience irreparable harm if their case were to wait for the merit docket. 

The Supreme Court would likely argue that irreparable harm would befall the State of Alabama if they were to redraw their congressional maps ahead of the 2022 elections. However, herein lies one of the largest concerns regarding the use of the shadow docket– nobody knows what went into their decision. Nobody knows their precise reasoning because, due to the expedited procedure, the Justices do not hear arguments, read briefs, and most importantly, do not issue majority opinions. Most often, the Justices do not sign decisions, leading to a major lack of transparency. The only time the public is informed about the make-up of these decisions is when the Justices decide to sign on to a particular opinion. The Court issues short, concise opinions that simply state whether the lower court has been overturned or not. There is no answer to constitutional questions within these opinions. 

This problem of transparency is only one issue cited by critics of the shadow docket. Both the House and Senate Judiciary Committee as well as Supreme Court members themselves have raised serious questions surrounding the legitimacy of the shadow docket. 

Justice Stephen Breyer, for instance, has heavily criticized the use of the shadow docket to affect death penalty cases. Justice Sonya Sotomayor similarly expressed her concern with the lowering of the strict qualifications for expedited procedure. Chief Justice Roberts has increasingly expressed his resentment to use the shadow docket in deciding important constitutional cases. In the wake of a Texas abortion case decided on the shadow docket, Chief Justice Roberts explained that this type of quick decision making does not lead to effective law. 

Specific to the Alabama case, Chief Justice Roberts wrote a dissenting opinion about how the use of the shadow docket can be associated with the decline of merit cases decided by the Supreme Court. Roberts contends in his dissent that the correct procedure would have been to hear the appeal during the next session and not grant a stay. In other words, he argues that issues of racial gerrymandering should be grappled with on the merit docket and thinks that the lower court applied the law correctly.

The conservative Justices that decided this Alabama shadow docket case disagree with Roberts. Justices Kavanaugh and Alito explained the rationale behind this decision. They claimed that allowing for a redraw of the congressional map would significantly affect the upcoming election, and that law must be consistent throughout an election cycle. 

The fact that the Roberts’ Court has historically taken a hands-off approach to gerrymandering questions, generally deferring to the right of states to conduct elections, also raises important constitutional questions. Chief Justice Roberts essentially contends that issues of state redistricting are outside the purview of the Supreme Court. He writes that there is no “Fair Districts Amendment” in the Constitution and believes state legislatures can better write and assess fairness tests for anti-gerrymandering legislation. 

The Alabama case is representative of numerous shadow docket decisions over the course of the past five years. These short, confusing decisions are a threat to the judicial system as they effectively negate the need for merit review in the short term. The lack of transparency through Justices not having to explain their reasoning or voting patterns raises serious concerns about the legitimacy of this process. 

Congress’ attention to the issue of the shadow docket reflects a more recent political goal of reforming the Supreme Court during the Biden Presidency. As the Biden Administration and a Democratic Congress examine the role of the Supreme Court in American Democracy, the use of the shadow docket as an example of judicial overreach will no doubt appear at the forefront of the discussion about Supreme Court reform. 

Andreas Rivera Young is a Sophomore at Brown University, concentrating in Political Science and History. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at andreas_rivera_young@brown.edu.