Justice Breyer Says Not to Worry about the Shadow Docket

Harvard magazine reports on recent comments by retired Supreme Court Justice Stephen Breyer on the “shadow docket.” Although Justice Breyer would likely vote with the more liberal justices on many interim orders, he does not seem to share the concerns of Court commentators about how the Court has been handling things. From the story:

“Should we be worried about the Court’s reliance on the shadow docket?” West asked Breyer, noting that many audience members had submitted questions about it.

No, was Breyer’s short answer. “Every court has what you’re saying is a shadow docket, which we call an emergency docket,” he said, explaining that throughout most of the Supreme Court’s history the docket had been used primarily to issue stays of execution in death penalty cases. “Or sometimes,” he added, there would be a “very important case about an election or an election rule, and we might issue the stay.”

Tracing the increasing use of the shadow docket in part to the rash of legal challenges that sprang up in the wake of vaccine mandates and other restrictions during the COVID-19 pandemic, Breyer—who now serves as Byrne professor of administrative law at Harvard Law School and as a visiting judge for the First Circuit Court of Appeals—rejected the notion that “there’s some kind of plot involved within the Court to get this or that decided.”

Instead, he argued, the nature of cases reaching the court on an emergency basis has changed: rather than death penalty and election matters, many cases more often involve constitutional disputes about “the nature of the constitutional relationship” between Congress and the president and the separation of powers.”

“So it’s hardly surprising to me, where you have a government that wants to bring those [issues] up, that you have more cases on the emergency docket,” Breyer said.

Former Judge Michael McConnell  does not share Justice Breyer’s judicial philosophy, but has a similar take on whether the increasing use of the “shadow docket” should raise alarms. Writing in the Washington Post, he notes that this is an understandable and inevitable response to the increasing reliance upon aggressive assertions of executive power and resulting litigation. He writes:

Many shadow docket decisions are subject to legitimate criticism, but the wholesale condemnation of the practice is misguided. Such cases are driven by the practical reality that it takes months if not years for a case to wend its way through the judiciary. Whether a policy is implemented while the case is litigated is often the whole ballgame. By the time it gets to the Supreme Court, the harm is already done. . . .

The cases are hard because, very often, the harm is irreparable on both sides. . . .  When a president is allowed to implement a new policy without authority from Congress — say, on tariffs or vaccines — it’s often impossible to unring the bell. But if the president is forbidden from implementing a new policy where he genuinely has authority, the will of the voters can be thwarted for years.

The best the courts can do is to make an educated guess about the ultimate outcome on the legal merits and try to minimize serious, irreversible consequences. In a hierarchical system like our judiciary, it makes sense for the final decision-maker to become involved in a case when an interim order effectively resolves the dispute. I have little doubt that when a Democratic president is again elected, and district judges issue preliminary injunctions against controversial initiatives, many of today’s critics will want the high court to intervene. . . .

Supreme Court decisions are often controversial and sometimes wrong. But the focus should be on the individual cases — the court’s judgment on the probability of success on the merits and on which side stands to suffer the most serious and irreparable damage from an incorrect decision. That the court is forced by events to act quickly, and sometimes disagrees with lower court judges, is an inevitable result of the controversial use of executive power. The notion that this is an underhanded scheme to benefit one president is overly cynical. The practice began under Obama, has accelerated with each succeeding presidency and will continue when Trump is long gone.

To fully catch-up on worthwhile “shadow docket” commentary, I also recommend this NYT interview with Will Baude.

As before, you can find my prior posts on this subject here.