What Would It Take to Tame the “Shadow Docket”?

It is much easier to complain about how the Supreme Court handles interim orders on the “Shadow Docket” than to propose meaningful and acceptable reforms. That is, if one is concerned about the process and practice of the Court (and not just its jurisprudential tilt), one must confront the trade-offs inherent in any reform of how interim orders are sought, considered, and addressed.

This is one of the lessons of Garrett West’s important new paper “Taming the Shadow Docket,” just published in the Virginia Law Review.

Here is the abstract:

The Supreme Court’s shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This Article identifies comprehensive structural reforms, all within the Court’s control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, states, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the Administrative Procedure Act (“APA”); and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.

And here is from the paper’s conclusion:

The problem of the shadow docket is not that the Court fails to explain itself or applies the wrong standards of review. The problem is structural. The lower federal courts, applying current doctrines governing judicial review of federal and state policies, have broad authority to block legislation and administrative action. The Supreme Court, meanwhile, is institutionally committed to its position of supremacy over those lower courts, necessitating the exercise of control over the lower courts in significant matters. Those factors mean that proposed reforms for the Court’s use of the shadow docket misdiagnose the structural problem.

This Article, by contrast, offers structural reforms that would allow the Court to change the conditions in the lower courts to prevent significant matters from landing on the shadow docket in the first place. The set of reforms is systematic rather than myopic because focusing on (for example) nationwide injunctions but not also standing and Ex parte Young would solve a problem that would reemerge in a new doctrinal form. And the reforms are pitched at just the right level of ambition—not too fatalistic and not too quixotic: not too fatalistic, because I suggest actual changes that the Court (and lower courts) could implement to reduce the structural causes of the problem that it faces; not too quixotic, because I assume that Congress will do nothing and because the proposed “reforms” are either technically already the law or reasonably plausible refinements or developments of current doctrine. What this Article provides, then, is a menu of options for reducing the pressure on the Court to intervene in the appellate process. Not all such options will seem necessary; some might seem to go too far. But they should all be on the table if the shadow docket is really a problem that needs to be managed.

Or perhaps the shadow docket is a necessary feature of a constitutional system in which the federal courts constrain political actors. On that view, the reforms proposed would fix the shadow docket but undermine the critical judicial function. If so, the solution is not to weaken the courts but to embrace an interim docket, and potentially to make the Supreme Court more effective at its supervisory function. Reforms that allow the Court to intervene earlier or more often might change the composition of the Court’s day-to-day work, but such an evolution might be inevitable if the federal courts are to effectively police political actors. Whether the better course is to disempower the lower courts or to embrace the Court’s new role is up for debate. But it is implausible to argue that the lower courts should regularly resolve matters of national significance while the Supreme Court declines to intervene.