Volume 109

Judicial Review in Times of Emergency: From The Founding Through The Covid-19 Pandemic

[O]f course, Korematsu was wrong . . . . But you are kidding yourself if you think the same thing will not happen again.

– Justice Antonin Scalia1 1.Justice Antonin Scalia, Statement at University of Hawaii School of Law (Feb. 3, 2014), quoted in Debra Cassens Weiss, Scalia: Korematsu Was Wrong, but ‘You Are Kidding Yourself’ If You Think It Won’t Happen Again, A.B.A. J. (Feb. 4, 2014, 1:05 PM), https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won [https://perma.cc/D6YQ-CRND].Show More

Introduction

In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government brought the accused before a tribunal composed of nine military officers at the Old Arsenal Penitentiary in Washington, D.C.2 2.Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 174–75 (2017) (detailing procedures and proceedings).Show More The President’s order empowered the commission to set its own rules of procedure.3 3.Id. at 175.Show More By the ensuing rules, a majority vote of the officers could sustain a guilty verdict, a two-thirds majority vote could sustain a death sentence, and the only avenue for appeal was to seek a pardon from the President.4 4.Id.Show More

Appearing for the prosecution, Representative John Bingham—who one year later would serve as primary drafter of the Fourteenth Amendment—argued that the due process guarantee set forth in the Fifth Amendment to the Constitution was “only the law of peace, not of war.”5 5.Id. at 175–76.Show More “[I]n war,” he asserted, “it must be, and is, to a great extent, inoperative and disregarded.”6 6.Id. at 176; see also Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 89–98 (2013) (detailing the arguments of Bingham and others in relation to the applicability of the U.S. Constitution in times of war).Show More

Counsel for the accused conspirators argued that they deserved a jury trial in a proper court of law. Specifically, Maryland Senator Reverdy Johnson argued that fundamental liberties are “more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other.”7 7.Magliocca, supra note 6, at 94.Show More It followed, in his view, that only members of the United States military could be tried by a military commission. Given that the courts were open and operating in the District, he contended, the defendants were entitled to a jury trial with the full panoply of procedural protections set forth in the Bill of Rights.8 8.Id.Show More

But Bingham was not finished. Bingham also cited as legal sanction for the military trials President Lincoln’s earlier declarations of martial law and suspension of habeas corpus that had followed under legislation enacted by the United States Congress in 1863.9 9.Id. at 95–96.Show More More generally, during wartime, he contended, “the rights of each citizen, as secured in time of peace, must yield to the wants, interests, and necessities of the nation.”10 10.Id. at 96.Show More

As every armchair Civil War historian knows, Bingham’s arguments prevailed on that occasion. The military commission proceeded to convict all eight defendants on various conspiracy-related charges,11 11.These included the charge of traitorously conspiring to commit murder, a crime not codified in federal law but one that had been announced by the military officers for the case at hand. Id. at 98–99.Show More sentencing four to death, three to life terms, and one to a six-year prison term.12 12.Id. at 99–102.Show More Days later, on July 7, 1865, the government hanged the four given capital sentences.13 13.Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L. Rev. 609, 629 (2012).Show More This happened despite the filing by one of the condemned, Mary Surratt, of an overnight habeas petition reiterating Senator Johnson’s arguments, which was thwarted by the personal intervention of President Johnson.14 14.Tyler, supra note 2, at 177.Show More

Just one year later and with the Civil War effectively over, in Ex parte Milligan, the Supreme Court of the United States rejected the notion that military courts could try civilians in states “where the courts are open and their process unobstructed.”15 15.Ex parte Milligan, 71 U.S. (4 Wall.) 2, 31–32, 121 (1866).Show More In so doing, the Court rebuffed the government’s argument that the Bill of Rights constituted “peace provisions” that “like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law.”16 16.Id. at 20 (replicating government’s argument).Show More Instead, Milligan championed the following proposition: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”17 17.Id. at 120–21. For more on Milligan and the trial of the Lincoln conspirators, see Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 Colum. L. Rev. 323, 394–457 (2018).Show More

It is an inspiring passage. But the track record over the course of American history seems to suggest otherwise. More often than not, Bingham’s arguments have prevailed when courts have reviewed government actions taken during times of war and emergency. Whether the courts expressly say the Constitution means something different in such times, or say the political branches deserve extra deference during such emergencies, or say that during such times the judiciary should stay its hand entirely, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency. Whether deferring to President Lincoln’s blockade at the start of the Civil War,18 18.The Prize Cases, 67 U.S. (2 Black) 635, 670–71 (1863).Show More a state’s suspension of creditors’ remedies during the Great Depression,19 19.Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 416, 447–48 (1934).Show More or President Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II,20 20.See, e.g., Hirabayashi v. United States, 320 U.S. 81, 83, 85–89, 104–05 (1943); Korematsu v. United States, 323 U.S. 214, 215–18 (1944).Show More the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that would be viewed as flouting the Constitution during peacetime. All of this has been exacerbated, moreover, by the ever-expanding conceptions of war and emergency more generally.21 21.See, e.g., Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences 5, 136 (2012) (exploring how the concept of wartime has expanded dramatically over the course of American history, particularly in the hands of politicians); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 737 (2006) (exploring similar trends). This Article sometimes refers to “wars and emergencies”; to be clear, however, this Article conceives of wars as one subset of emergencies.Show More

It follows that studying emergencies has the potential to tell us something both about the judicial role and the Constitution itself. This is because such a study implicates a range of questions, including whether the Founding document, despite expressly accounting for the potential for war and emergency, is a compact the meaning of which turns on the state of national security.22 22.There are many wartime powers noted in the Constitution. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”); id. cls. 12–14 (empowering Congress “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces”); id. cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); id. § 9, cl. 2 (referencing the power to suspend habeas corpus).Show More That is, was Bingham correct that it means something different in times of crisis versus when the country is at peace? And what of the judicial role? Does it differ depending on such circumstances?

Although Bingham’s arguments most often have prevailed historically, there have been a handful of Supreme Court decisions, like Milligan, pushing back on the idea that the political branches deserve extensive deference to manage crises. Consider, in addition to Milligan, Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), in which the Supreme Court told President Truman that he could not seize the country’s steel mills that were about to strike during the height of the Korean War.23 23.Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 588–89 (1952).Show More The result is unsettled terrain, with many of the larger questions about the Constitution and judicial role in times of emergency having never been fully resolved.24 24.As explored below, Milligan and other examples of Supreme Court decisions that do not defer to the political branches have often come in the waning days of—or even after—the relevant emergency. See infra text accompanying notes 60–67.Show More Instead, well over two hundred years into our constitutional experiment, debates rage on as to the proper roles of the judiciary and our Founding document during such times.25 25.For a small selection of some of the relevant literature on point, see, e.g., Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337 (2015); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004); Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691 (2004); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993).Show More

With the COVID-19 pandemic and the extensive litigation it has spurred targeting regulation of conduct deemed dangerous to public health, there is a new chapter to add to the mix. And it is a very interesting one. In several cases, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where such rules have intersected with the exercise of religion, but also in the areas of property rights and separation of powers. It has done so, moreover, often in the context of its so-called “shadow docket”26 26.I believe the term originated with William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015). The rise of orders in such cases has been explored in detail by Stephen Vladeck. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 152–53 (2019). There is a debate over the appropriateness of the term “shadow docket,” but I will employ it here given that these are cases often without full briefing and argument in which, as the cases discussed below in Part II demonstrate, the Court has sometimes rendered highly consequential rulings that are not always clearly supported by existing precedent. This Article puts to the side the debate over whether the Court should be so active in this posture and whether it should be establishing new substantive law in these cases. Nonetheless, I tend to join camp with those who are critical of the Court on both fronts. See, e.g., id. at 156–60; see also Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (forthcoming 2023) (arguing that the Court’s use of the shadow docket is fundamentally inconsistent with its role in the judicial process and risks serious long-term institutional harm to the Court).Show More—its emergency application docket that fast-tracks cases to the Court without the benefit of full briefing and argument. This being said, a Court majority has also deferred to government decisions made in the context of the pandemic in several other contexts, including when reviewing abortion and prison policies.

All the same, the Court’s propensity to be so active of late invites a revival of the debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same. On one view, the Constitution means something different during times of emergency, insofar as the political branches effectively enjoy broader discretion to manage the country through such crises. On another view—and one that has controlled in some recent COVID-19-era decisions by the Supreme Court—any emergency context should not factor into how the Court assesses the constitutionality of government action. An example of this view may be found in Justice Gorsuch’s recent opinion voting to override a governor’s order setting capacity restrictions on religious worship to halt the spread of COVID-19.27 27.S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021).Show More There, he wrote, “[e]ven in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.”28 28.Id. at 718 (statement of Gorsuch, J.).Show More

This Article explores the role of judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic. It also surveys debates on either side of the competing visions of the Constitution and the judicial role during emergencies. Finally, the Article suggests that even if one has significant concerns over the processes by which the current Supreme Court has decided some of the recent pandemic cases and/or the underlying merits of the decisions rendered by the Court, there is much to welcome in recent opinions positing that emergencies do not automatically diminish the individual rights protections in the Constitution or, for that matter, the judicial role. All the same, the Article concludes by critiquing the inconsistency in the Court’s approach to its role during the pandemic. Further, it suggests that it is not so much a desire to revive the judicial role in times of emergency that is driving the searching review we have witnessed in some of the pandemic cases, but instead the proverbial tail that wags the dog. In short, many of the Justices seem far more driven by the particular merits of the cases than a consistent approach to judicial review in times of emergency. A better approach would transcend the merits of any given context to embrace a model of judicial review that remains consistent regardless of the underlying merits and, most of all, the existence—or not—of any kind of emergency.

  1.  Justice Antonin Scalia, Statement at University of Hawaii School of Law (Feb. 3, 2014), quoted in Debra Cassens Weiss, Scalia: Korematsu Was Wrong, but ‘You Are Kidding Yourself’ If You Think It Won’t Happen Again, A.B.A. J. (Feb. 4, 2014, 1:05 PM), https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won [https://perma.cc/D6YQ-CRND]. ↑
  2.  Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 174–75 (2017) (detailing procedures and proceedings). ↑
  3.  Id. at 175. ↑
  4.  Id. ↑
  5.  Id. at 175–76. ↑
  6.  Id. at 176; see also Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 89–98 (2013) (detailing the arguments of Bingham and others in relation to the applicability of the U.S. Constitution in times of war). ↑
  7.  Magliocca, supra note 6, at 94. ↑
  8.  Id. ↑
  9.  Id. at 95–96. ↑
  10.  Id. at 96. ↑
  11.  These included the charge of traitorously conspiring to commit murder, a crime not codified in federal law but one that had been announced by the military officers for the case at hand. Id. at 98–99. ↑
  12.  Id. at 99–102. ↑
  13.  Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L. Rev. 609, 629 (2012). ↑
  14.  Tyler, supra note 2, at 177. ↑
  15.  Ex parte Milligan, 71 U.S. (4 Wall.) 2, 31–32, 121 (1866). ↑
  16.  Id. at 20 (replicating government’s argument). ↑
  17.  Id. at 120–21. For more on Milligan and the trial of the Lincoln conspirators, see Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 Colum. L. Rev. 323, 394–457 (2018). ↑
  18.  The Prize Cases, 67 U.S. (2 Black) 635, 670–71 (1863). ↑
  19.  Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 416, 447–48 (1934). ↑
  20.  See, e.g., Hirabayashi v. United States, 320 U.S. 81, 83, 85–89, 104–05 (1943); Korematsu v. United States, 323 U.S. 214, 215–18 (1944). ↑
  21.  See, e.g., Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences 5, 136 (2012) (exploring how the concept of wartime has expanded dramatically over the course of American history, particularly in the hands of politicians); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 737 (2006) (exploring similar trends). This Article sometimes refers to “wars and emergencies”; to be clear, however, this Article conceives of wars as one subset of emergencies. ↑
  22.  There are many wartime powers noted in the Constitution. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”); id. cls. 12–14 (empowering Congress “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces”); id. cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); id. § 9, cl. 2 (referencing the power to suspend habeas corpus). ↑
  23.  Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 588–89 (1952). ↑
  24.  As explored below, Milligan and other examples of Supreme Court decisions that do not defer to the political branches have often come in the waning days of—or even after—the relevant emergency. See infra text accompanying notes 60–67. ↑
  25.  For a small selection of some of the relevant literature on point, see, e.g., Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337 (2015); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004); Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691 (2004); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993). ↑
  26.  I believe the term originated with William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015). The rise of orders in such cases has been explored in detail by Stephen Vladeck. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 152–53 (2019). There is a debate over the appropriateness of the term “shadow docket,” but I will employ it here given that these are cases often without full briefing and argument in which, as the cases discussed below in Part II demonstrate, the Court has sometimes rendered highly consequential rulings that are not always clearly supported by existing precedent. This Article puts to the side the debate over whether the Court should be so active in this posture and whether it should be establishing new substantive law in these cases. Nonetheless, I tend to join camp with those who are critical of the Court on both fronts. See, e.g., id. at 156–60; see also Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (forthcoming 2023) (arguing that the Court’s use of the shadow docket is fundamentally inconsistent with its role in the judicial process and risks serious long-term institutional harm to the Court). ↑
  27.  S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021). ↑

  28.  Id. at 718 (statement of Gorsuch, J.). ↑

The Animal Crushing Offense Loophole

The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse. Hailed by humane groups as a watershed moment in the development of animal welfare law, the PACT Act created a new federal crime: “animal crushing”—i.e., the crushing, burning, drowning, suffocation, and impalement of living non-human creatures. But as the first defendants convicted under the PACT Act face sentencing in federal courts, judges and other stakeholders find little direction in the Federal Sentencing Guidelines. The United States Sentencing Commission, which until recently lacked a voting quorum, has yet to promulgate an amendment to the Guidelines that accounts for this change in the law. Instead, the current framework perpetuates a loophole in which the recommended penalty for animal crushing is typically less than the recommendation for offenders convicted of creating or distributing videos of that conduct. As federal prosecutors increasingly bring charges under the PACT Act, this gap in the Guidelines will continue to lead to unjust sentencing disparities that do not adequately reflect the depravity of animal torture.

This Essay is the first to identify what it terms the “animal crushing offense loophole.” It offers three potential solutions on the eve of the Commission’s annual amendment cycle: the creation of a new Animal Crushing Guideline, the express recognition of animal victimhood, and the use of a set of sentencing factors that distinguish among animal crushing defendants.

Introduction

In a 1999 hearing before the House Judiciary Committee, members of Congress were introduced to the growing interstate market in animal “crush videos.”1 1.H.R. Rep. No. 111-549, at 2 (2010), as reprinted in 2010 U.S.C.C.A.N. 1224, 1225.Show More Animal crush videos glamorize small creatures being tortured to death in brutal fashion, often for the viewer’s sexual gratification.2 2.Sirin Kale, ‘Sometimes They’re Boiled Alive’: Inside the Abusive Animal Crush Industry, Vice (Nov. 3, 2016, 9:50 AM), https://www.vice.com/en/article/d3gv7q/inside-abusive-animal-crush-fetish-industry [https://perma.cc/63P9-MRJX].Show More At the time, thousands of crush videos were available for purchase in some of the darkest corners of the internet.3 3.H.R. Rep. No. 111-549, at 2.Show More One such video, described in graphic detail by the Humane Society of the United States in a 2010 amicus brief, shows a speckled kitten, locked to the ground, shrieking in pain as a woman slams her high-heeled stiletto into its eye socket.4 4.Brief for the Humane Society of the United States as Amicus Curiae Supporting Petitioner at 2, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769).Show More Viewers hear the kitten’s skull shatter.5 5.Id.Show More Yet the woman keeps stomping. By the time the video ends, all that is left of the kitten is a “moist pile of blood-soaked hair and bone.”6 6.Id.Show More

Following that initial hearing, Congress passed a series of laws that criminalized the creation and distribution of animal crush videos. But those laws contained a crucial exception: the actual conduct depicted in animal crush videos was not subject to a federal penalty. Not until 2019 was the act of “animal crushing”—which is a term of art encompassing the most extreme forms of animal cruelty—prohibited under federal law. The United States Sentencing Commission, however, has yet to promulgate an amendment to the Federal Sentencing Guidelines7 7.U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021).Show More (“Guidelines” or “U.S.S.G.”) that accounts for this change. Today, courts are sentencing animal crushing defendants using guideline calculations that do not reflect the depravity of extreme animal abuse. That gap in the Guidelines—which this Essay terms the “animal crushing offense loophole”—presents a serious threat to the administration of justice in cases involving some of the most depraved and sadistic forms of human behavior.

This Essay is the first to identify and offer solutions to this glaring gap in the Federal Sentencing Guidelines. It calls the problem to the attention of the United States Sentencing Commission as it prepares to enter a new amendment cycle in late spring 2023. This Essay also provides guidance to judges, prosecutors, probation officers, and defense attorneys on how to approach sentencing in animal crushing cases. It proceeds in four parts. Part I briefly addresses the history of the federal anti-animal cruelty statute, 18 U.S.C. § 48. Part II explains the animal crushing offense loophole and how it leads to dramatically insufficient recommended guideline sentences for defendants convicted of animal crushing. Part III suggests three reforms that would help courts fashion a sentence that adequately accounts for the cruelty of animal crushing offenses. The Commission could create a new Animal Crushing Guideline; alternatively, it could amend the Guidelines to recognize animal victimhood. In addition, sentencing judges can utilize a set of factors to better distinguish among animal crushing defendants. This Essay concludes by assessing the likelihood of reform.

  1.  H.R. Rep. No. 111-549, at 2 (2010), as reprinted in 2010 U.S.C.C.A.N. 1224, 1225. ↑
  2.  Sirin Kale, ‘Sometimes They’re Boiled Alive’: Inside the Abusive Animal Crush Industry, Vice (Nov. 3, 2016, 9:50 AM), https://www.vice.com/en/article/d3gv7q/inside-abusive-animal-crush-fetish-industry [https://perma.cc/63P9-MRJX]. ↑
  3.  H.R. Rep. No. 111-549, at 2. ↑
  4.  Brief for the Humane Society of the United States as Amicus Curiae Supporting Petitioner at 2, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769). ↑
  5.  Id. ↑
  6.  Id. ↑
  7. U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021). ↑

Deep in the Shadows?: The Facts About the Emergency Docket

The past few years have witnessed a particular accusation leveled repeatedly and loudly at the U.S. Supreme Court’s conservative supermajority: that they are using the Court’s emergency (or pejoratively, “shadow”) docket to issue highly consequential decisions in a sneaky, secretive fashion. Using data from the Court’s 2021–22 Term and neutral methods, we analyze the entirety of the emergency docket. The results show that conservative interests fare better on the emergency docket, just as they do on the merits docket—no surprise considering the Court’s political orientation. Unsettling as this may be from a liberal or legal-formalist perspective, there is little evidence that any of this is happening in the shadows.

Introduction

Minutes before midnight on September 1, 2021, the U.S. Supreme Court declined to block a Texas law that banned abortions after six weeks.1 1.Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2494–96 (2021).Show More The uproar that followed reflected not only fervent views over abortion but also procedural concerns. Among the complaints was that the Court had issued the ruling on its emergency docket—these days, often called the “shadow docket.”2 2.The emergency docket goes by various names, including the “non-merits docket,” the “procedural docket,” and the “shadow docket.” Credit for originating the term “shadow docket” is generally given to an article by University of Chicago Law Professor Will Baude. See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1,5 (2015).Show More In dissent, Justice Kagan, joined by Justices Sotomayor and Breyer, criticized the Court’s increased reliance on the “shadow docket” as “unreasoned, inconsistent, and impossible to defend.”3 3.Whole Woman’s Health, 141 S. Ct. at 2500 (Kagan, J., dissenting).Show More Weeks later, Justice Alito responded in a speech, rebuking critics of the “shadow docket” as wanting to “portray the [C]ourt as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”4 4.Adam Liptak, Alito Responds to Critics of the Supreme Court’s ‘Shadow Docket,’ N.Y. Times (Sept. 30, 2021), https://www.nytimes.com/2021/09/30/us/politics/alito-shadow-docket-scotus.html [https://perma.cc/2NNB-5QX3].Show More

If the goal of using the term “shadow docket” was to draw attention to a heretofore obscure area of the Supreme Court’s business, it worked.5 5.See Ellena Erskine, Senators Spar Over Shadow Docket in Wake of Court’s Order Allowing Texas Abortion Law to Take Effect, SCOTUSblog (Sept. 29, 2021, 8:20 PM), https://www.scotusblog.com/2021/09/senators-spar-over-shadow-docket-in-wake-of-courts-order-allowing-texas-abortion-law-to-take-effect [https://perma.cc/6MND-KJYR] (quoting Senator Ted Cruz as saying: “Shadow docket, that is ominous. Shadows are really bad, like really, really bad” (internal quotation marks omitted)); Liptak, supra note 4.Show More To be sure, some prior emergency applications have been consequential and attention-grabbing, such as the injunction ordering a halt to the Nixon administration’s bombing in Cambodia in 1973.6 6.Burt Neuborne, I Fought the Imperial Presidency, and the Imperial Presidency Won, ACLU (Sept. 27, 2019), https://www.aclu.org/issues/national-security/i-fought-imperial-presidency-and-imperial-presidency-won [https://perma.cc/JY8K-KRVN].Show More But those were rare. No longer. The last several years have seen an explosion of commentary about the shadowy emergency docket in settings ranging from academic articles7 7.E.g., Richard J. Pierce, Jr., The Supreme Court Should Eliminate its Lawless Shadow Docket, 74 Admin. L. Rev. 1 (2022); Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme Court’s Emergency Stays, 44 Harv. J.L. & Pub. Pol’y 827 (2021); Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (2019).Show More to tweets,8 8.E.g., Leah Litman (@LeahLitman), Twitter (Feb. 23, 2023, 1:25 PM), https://twitter.com/‌LeahLitman/status/1628823350092124161 [https://perma.cc/2CR9-RPQP] (tweet quoting Professor Steve Vladeck who, in a video previewing his book on the shadow docket, says: “[T]he Court is regularly using and abusing the Shadow Docket in ways that directly affect all of us”).Show More blogs,9 9.E.g., Symposium on the Supreme Court’s Shadow Docket, SCOTUSblog (Oct. 2020), https://www.scotusblog.com/category/special-features/symposium-on-the-supreme-courts-shadow-docket [https://perma.cc/44DB-V4K7]; Harry Isaiah Black & Alicia Bannon, The Supreme Court ‘Shadow Docket,’ Brennan Ctr. for Just. (July 19, 2022), https://www.brennan‌center.org/our-work/research-reports/supreme-court-shadow-docket [https://perma.cc/C2K‌H-T6F4].Show More legal podcasts,10 10.E.g., Jeffrey Rosen, We the People, The Supreme Court’s “Shadow Docket,” Nat’l Const. Ctr. (Oct. 7, 2021), https://constitutioncenter.org/news-debate/podcasts/the-supreme-courts-shadow-docket [https://perma.cc/L9D2-TZRV].Show More news articles,11 11.E.g., Liptak, supra note 4; Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, ABA (Apr. 14, 2021), https://www.american‌bar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-s‌hadow-docket-under-review-by-house-reps [https://perma.cc/92RL-W7B7]; Steve Vladeck, Brett Kavanaugh’s Defense of the Shadow Docket Is Alarming, Slate (Feb. 8, 2022, 4:32 PM), https://slate.com/news-and-politics/2022/02/the-supreme-courts-shadow-docket-rulings-kee‌p-getting-worse.html [https://perma.cc/SQ83-2JZ9]; Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020, 12:12 PM) [hereinafter Vladeck, Partisan Decisions], https://slate.com/news-and-politics/2020/08/sup‌reme-court-shadow-docket.html [https://perma.cc/TB24-H3MX]; Lydia Wheeler, US Supreme Court ‘Shadow Docket’ Quieter So Far This Term, Bloomberg L. (Dec. 27, 2022, 4:45 AM), https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X4VOEVIO0‌00000?bna_news_filter=us-law-week#jcite [https://perma.cc/DL7R-HWCG].Show More and even congressional hearings.12 12.E.g., Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket: Hearing Before the S. Comm. on the Judiciary, 117th Cong. (2021) (testimony of Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law), https://www.judiciary.senate.gov/imo/media/doc/Vladeck%20testimony1.pdf [https://perma.cc/6MUZ-S24D].Show More

Why? Two reasons have moved front and center. The first implicates the supposedly “shadowy” bit of the treatment of emergency applications. The accusation leveled by detractors is that the Justices are making increasing use of the emergency docket to issue consequential rulings on matters ranging from redistricting plans13 13.E.g., Merrill v. Milligan, 142 S. Ct. 879 (2022).Show More to immigration policy14 14.E.g., Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (per curiam).Show More to COVID regulations,15 15.E.g., Chrysafis v. Marks, 141 S. Ct. 2482 (2021).Show More and, of course, abortion. The resulting orders, critics claim, can have precedential value16 16.This is so even though they are not formally precedential. See, e.g., 1A, Remaking America: The Supreme Court, the Shadow Docket, and America’s Trust, NPR, at 11:38 (Apr. 25, 2022, 3:53 PM), https://www.npr.org/2022/04/25/1094620949/remaking-america-the-supreme-court-the-shadow-docket-and-americas-trust [https://perma.cc/BVM8-UAV6]; Alex Badas, Billy Justus & Siyu Li, Assessing the Influence of Supreme Court’s Shadow Docket in the Judicial Hierarchy, 43 Just. Sys. J. 609, 612–14, 21 (2022); McFadden & Kapoor, supra note 7, at 830–31.Show More—even though the Justices received only minimal briefing, did not have the benefit of oral arguments, and resolved the matter in days (not the many months that “merits” decisions receive) in orders with almost no rationale.

The complaint that judges are issuing decisions without reasons and, therefore, undermining rule-of-law values and the development of precedent is not new.17 17.For analyses of judicial avoidance, see, e.g., Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1, 18–19 (2016); David C. Vladeck & Mitu Gulati, Judicial Triage: Reflections on the Debate Over Unpublished Opinions, 62 Wash. & Lee L. Rev. 1667, 1676, 1680–84 (2005).Show More But that complaint is often about judges doing less work than detractors would like them to.18 18.E.g., Mitu Gulati & C.M.A. McCauliff, On Not Making Law, 61 L. & Contemp. Probs. 157, 173 (1998). To quote Justice Frankfurter on the matter of emergency docket decisions and why they are given limited attention: “If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive . . . .” Maryland v. Balt. Radio Show, Inc., 338 U.S. 912, 918 (1950) (Frankfurter, J., respecting denial of certiorari).Show More The claim in the shadow-docket drama is different. It is not that the Justices are being lazy. It is that the conservative Justices have devised a sneaky technique to make big decisions that end up having precedential value in secret.

Which brings us to the second explanation for the growing attention—and concern—over the shadow docket: brute politics. The division between Justices Alito and Kagan is not happenstance. Because it seems that many “emergency rulings” have favored conservative causes, liberals have decried the emergency docket as a dangerous, politically expedient tool that the conservative majority has exploited to advance its partisan and ideological commitments.19 19.See Black & Bannon, supra note 9; Vladeck, Partisan Decisions, supra note 11; Damon Root, Elena Kagan’s Valid Critique of the Supreme Court’s ‘Shadow Docket,’ Reason (July 20, 2022, 11:58 AM), https://reason.com/2022/07/20/elena-kagans-valid-critique-of-the-supreme-courts-shadow-docket [https://perma.cc/LHW9-9QKM] (“[C]omplaints about the shadow docket have mostly come from liberal legal experts and activists. . . . Put simply, the Supreme Court’s recent spate of high-profile emergency interventions have largely aligned with conservative policy preferences.”); David S. Cohen, The Supreme Court’s ‘Shadow Docket’ Is Even Shadier than It Sounds, Rolling Stone (Apr. 10, 2022), https://www.rollingstone.com/politics/political-commentary/supreme-court-shadow-docket-conservative-agenda-1335473 [https://perma.cc/D3YF-D32C] (“[T]his ultraconservative Supreme Court is exploiting a mechanism that used to be reserved for the most emergent matters that come to the Court to further stamp its right-wing view on American law and society.”); Kimberly Strawbridge Robinson, Supreme Court Conservatives Want More Robust ‘Shadow Docket,’ Bloomberg L. (July 8, 2022, 12:51 PM), https://news.bloomberglaw.com/us-law-week/supreme-courts-conservatives-want-more-robu‌st-shadow-docket [https://perma.cc/EKB4-9K2K] (quoting Kimberly Humphrey, Federal Courts Legal Director for Alliance for Justice: “What stands out is that . . . conservative interests are the big winners when the Court grants emergency relief . . . .” (internal quotation marks omitted)).Show More To (liberal) detractors, the order upholding the Texas abortion ban is a prime example. Because the ruling contravened the then “superprecedent” of Roe v. Wade,20 20.410 U.S. 113 (1973); Jeffrey Rosen, So, Do You Believe in ‘Superprecedent’?, N.Y. Times (Oct. 30, 2005), https://www.nytimes.com/2005/10/30/weekinreview/so-do-you-believe-in-superprecedent.html [https://perma.cc/DG75-DUCP].Show More critics argue that the Court should have refrained from issuing an unreasoned “emergency” order without the benefit of full briefing and arguments.21 21.See Claire Hansen, Supreme Court Order on Texas Abortion Ban Puts ‘Shadow Docket’ in the Spotlight, U.S. News & World Rep. (Sept. 3, 2021), https://www.usnews.com/‌news/national-news/articles/2021-09-03/supreme-court-order-on-texas-abortion-ban-puts-shadow-docket-in-the-spotlight [https://perma.cc/YF6N-K7JU].Show More

The rebuttal is straightforward: however arresting the metaphor of the “shadow docket,” there is reason to be skeptical of it. As an initial matter, especially salient emergency applications, such as those over abortion and COVID, represent but a tiny fraction of the emergency docket.22 22.Even the staunchest critics of the shadow docket acknowledge this point. See Paul LeBlanc, Here’s What the ‘Shadow Docket’ Is and How the Supreme Court Uses It, CNN (Apr. 7, 2022, 9:24 AM), https://www.cnn.com/2022/04/07/politics/shadow-docket-supreme-court/index.html [https://perma.cc/9UNS-U27Y] (quoting Steve Vladeck as saying: “[The emergency] orders are unsigned and they’re unexplained, and 99% of the time we don’t care because they’re also entirely anodyne”).Show More The vast majority of applications are far less consequential administrative requests (such as applications for deadline extensions) that do not require the Court’s full consideration. These applications, the argument goes, lack a political dimension, and even for the few with political shadings (e.g., abortion and immigration), the Justices are not partisan or ideological in response; they are simply dealing with cases that “might really be emergencies.”23 23.Mark Rienzi, The Supreme Court’s “Shadow” Docket—A Response to Professor Vladeck, Nat’l Rev. (Mar. 16, 2021, 1:30 PM) (emphasis omitted), https://www.nationalrevi‌ew.com/bench-memos/the-supreme-courts-shadow-docket-a-response-to-professor-vladeck [https://perma.cc/5X72-U5W4]; see also Nina Totenberg, Justice Alito Calls Criticism of the Shadow Docket ‘Silly’ and ‘Misleading,’ NPR (Sept. 30, 2021, 7:12 PM), https://www.npr.org/2021/09/30/1042051134/justice-alito-calls-criticism-of-the-shadow-docket-silly-and-misleading [https://perma.cc/76KS-LHEF] (quoting Justice Alito: “‘The truth of the matter . . .  is that there is nothing shadowy’ or really new about the process”); Melissa Quinn, Amy Coney Barrett Says Supreme Court Justices Aren’t “Partisan Hacks,” CBS News (Sept. 13, 2021, 9:01 AM), https://www.cbsnews.com/news/amy-coney-barrett-supreme-court-justices-partisan-hacks [https://perma.cc/R983-D3AK] (quoting Justice Barrett shortly after the Court issued emergency rulings in which the three Democrats were in dissent: “[My goal] is to convince you that this court is not comprised of a bunch of partisan hacks” (internal quotation marks omitted)).Show More

Further, in response to accusations of nefarious behavior by the conservative Justices, it seems reasonable to point out the conservatives have a six-person majority. Do they really need to hide their reasoning in the shadows to make ultra-right-wing decisions? The conservatives have not exactly been shy in giving reasons for their decisions unmaking old precedent.24 24.See Nina Totenberg, The Supreme Court Is the Most Conservative in 90 Years, NPR (July 5, 2022, 7:04 AM), https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative [https://perma.cc/3KJP-UZU4].Show More One of the liberal complaints about the current Court, in fact, has been that the Court’s conservative majority has thrown caution to the wind and is overturning well-respected superprecedent with nary a thought.25 25.See Nicholas Goldberg, Column: After the Supreme Court Overturns Roe vs. Wade, What’ll It Do for an Encore?, L.A. Times (June 2, 2022, 3:08 AM), https://www.latimes.com/‌opinion/story/2022-06-02/supreme-court-roe-precedent-religious-liberty-federal-regulation [https://perma.cc/MV57-5TTS].Show More For these six Justices who are happy to do things in the open no matter what the public outcry, why work in the shadows? To return to abortion, that is hardly a matter on which the Court has tried to hide its views and sneak around via a back channel.26 26.The “sneaky” behavior accusation with regards to the current Court’s rulings on abortion has shown up elsewhere as well. See Michael Barbaro, The Daily, A Secret Campaign to Influence the Supreme Court, N.Y. Times, at 1:29 (Nov. 29, 2022), https://www.nytimes.com/‌2022/11/29/podcasts/the-daily/supreme-court-abortion-roe-v-wade.html [https://perma.cc/57‌WK-GJZX].Show More

So which side has the better case? Is contemporary use of the shadow docket “unreasoned, inconsistent, . . . impossible to defend,”27 27.Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2500 (2021) (Kagan, J., dissenting).Show More and politically motivated? Or is it, as Justice Alito contends, benign and apolitical, reserved only for matters that need prompt attention? To answer these related questions, we take a different approach than other commentators who have analyzed the emergency docket. Rather than base conclusions on cherry-picked highly-salient disputes, we examine a full Term’s worth of emergency applications, that is, every application submitted to the Court in its 2021–22 Term. A caveat: our inferences are based on data from a single Term. We cannot and do not say anything about how the use of the emergency docket has changed over time in response to external factors such as the internet and recent criticism.

With the goal of assessing the objection that the emergency docket is being abused in a political fashion, we break down the cases and votes by the political perspectives of the key players (Justices and claimants). In so doing, we refrain from inserting our personal judgments about what is conservative and liberal. Instead, we use established categorization methods from the existing literature. Our objective is to offer apolitical, factually-based insights into the patterns and trends in emergency docket rulings so that the debate can be more reasoned and less ideologically driven.

From the data, three findings emerge. First, the vast majority of emergency applications are requests to extend the filing time for certiorari petitions, which the individual Justices simply grant or deny. The Justices referred only 68 (of 871 total petitions) to the full Court (hereinafter “referred applications”). In other words, the individual Justices are happy to make decisions on their own for over 90% of the applications.

Second, for the referred applications, where the Justice who looks at the matter first refers it to their colleagues for more detailed analysis, standard ideological patterns emerge. The conservative Justices usually vote in favor of conservative claims. And the liberals generally vote in favor of liberal claims. Because conservatives outnumber liberals 6-3 on the current incarnation of the Roberts Court, conservative applicants and causes fare far better than liberal applicants in these consequential (referred) applications.

Third, the data unearth a restraint-activism dimension: at conservative and liberal extremes, the Justices either promote more aggressive use of the emergency docket (if they have the majority) or resist it (if they lack a majority). So, Justices Thomas, Alito, and Gorsuch (the conservative end), use the emergency docket in service of conservative interests, while the center-conservative Justices and liberal Justices resist doing so. That is the behavior we would expect out in the open sunlight, not just in the shadows.

All in all, our analysis validates claims on both sides of the debate. Most emergency applications are benign requests, lacking an obvious ideological or partisan component. But when they are not—when they involve salient matters, such as abortion, immigration, and voting rights—the conservative Court is partial to granting conservative applications.

Is there anything “shadowy” here? Not really. The voting patterns in the emergency applications docket and in the merits docket are similar. In terms of merits determinations, this is the most conservative Court in roughly a century.28 28.For this data on merits determinations from the 2021 Term, see Lee Epstein, Andrew D. Martin & Kevin Quinn, Provisional Data Report on the 2021 Term 5–7 (2022), https://epstein.usc.edu/s/2021TermDataReport.pdf [https://perma.cc/MH5N-QCPZ].Show More That that conservatism shows up in the emergency docket as well is not surprising. It is a distressing finding if one expected neutrality in this part of the docket. But why would one expect that?

Part I introduces the emergency docket data we gathered for the 2021–22 Term. The balance of the Essay details the more important findings relating to each Justice’s handling of applications they did not refer to the full Court (Part II), Court action in referred applications (Part III), and individual Justice action in referred applications (Part IV).

One final note before we turn to the data. In the discussion that follows, we categorize the ideology of the nine Justices as a function of where they are on the spectrum between liberal or conservative. On the liberal (left) side are the three Democratic appointees (Sotomayor, Kagan, and Jackson); on the very (“ultra”) conservative end, we include Thomas, Alito, and Gorsuch. The remaining three Justices—the Chief, Kavanaugh, and Barrett—are slightly less conservative, though much closer to Thomas et al. than the liberals.29 29.See Oriana González & Danielle Alberti, The Political Leanings of the Supreme Court Justices, Axios (June 24, 2022), https://www.axios.com/2019/06/01/supreme-court-justices-ideology [https://perma.cc/EMR9-TBN3] (reporting, based on Martin-Quinn scores, the ranking of Justices in terms of conservatism); see also Epstein, Martin & Quinn, supra note 28, at 4.Show More

  1.  Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2494–96 (2021). ↑
  2.  The emergency docket goes by various names, including the “non-merits docket,” the “procedural docket,” and the “shadow docket.” Credit for originating the term “shadow docket” is generally given to an article by University of Chicago Law Professor Will Baude. See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1,5 (2015). ↑
  3.  Whole Woman’s Health, 141 S. Ct. at 2500 (Kagan, J., dissenting). ↑
  4.  Adam Liptak, Alito Responds to Critics of the Supreme Court’s ‘Shadow Docket,’ N.Y. Times (Sept. 30, 2021), https://www.nytimes.com/2021/09/30/us/politics/alito-shadow-docket-scotus.html [https://perma.cc/2NNB-5QX3]. ↑
  5.  See Ellena Erskine, Senators Spar Over Shadow Docket in Wake of Court’s Order Allowing Texas Abortion Law to Take Effect, SCOTUSblog (Sept. 29, 2021, 8:20 PM), https://www.scotusblog.com/2021/09/senators-spar-over-shadow-docket-in-wake-of-courts-order-allowing-texas-abortion-law-to-take-effect [https://perma.cc/6MND-KJYR] (quoting Senator Ted Cruz as saying: “Shadow docket, that is ominous. Shadows are really bad, like really, really bad” (internal quotation marks omitted)); Liptak, supra note 4. ↑
  6.  Burt Neuborne, I Fought the Imperial Presidency, and the Imperial Presidency Won, ACLU (Sept. 27, 2019), https://www.aclu.org/issues/national-security/i-fought-imperial-presidency-and-imperial-presidency-won [https://perma.cc/JY8K-KRVN]. ↑
  7.  E.g., Richard J. Pierce, Jr., The Supreme Court Should Eliminate its Lawless Shadow Docket, 74 Admin. L. Rev. 1 (2022); Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme Court’s Emergency Stays, 44 Harv. J.L. & Pub. Pol’y 827 (2021); Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (2019). ↑
  8.  E.g., Leah Litman (@LeahLitman), Twitter (Feb. 23, 2023, 1:25 PM), https://twitter.com/‌LeahLitman/status/1628823350092124161 [https://perma.cc/2CR9-RPQP] (tweet quoting Professor Steve Vladeck who, in a video previewing his book on the shadow docket, says: “[T]he Court is regularly using and abusing the Shadow Docket in ways that directly affect all of us”). ↑
  9.  E.g., Symposium on the Supreme Court’s Shadow Docket, SCOTUSblog (Oct. 2020), https://www.scotusblog.com/category/special-features/symposium-on-the-supreme-courts-shadow-docket [https://perma.cc/44DB-V4K7]; Harry Isaiah Black & Alicia Bannon, The Supreme Court ‘Shadow Docket,’ Brennan Ctr. for Just. (July 19, 2022), https://www.brennan‌center.org/our-work/research-reports/supreme-court-shadow-docket [https://perma.cc/C2K‌H-T6F4]. ↑
  10.  E.g., Jeffrey Rosen, We the People, The Supreme Court’s “Shadow Docket,” Nat’l Const. Ctr. (Oct. 7, 2021), https://constitutioncenter.org/news-debate/podcasts/the-supreme-courts-shadow-docket [https://perma.cc/L9D2-TZRV]. ↑
  11.  E.g., Liptak, supra note 4; Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, ABA (Apr. 14, 2021), https://www.american‌bar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-s‌hadow-docket-under-review-by-house-reps [https://perma.cc/92RL-W7B7]; Steve Vladeck, Brett Kavanaugh’s Defense of the Shadow Docket Is Alarming, Slate (Feb. 8, 2022, 4:32 PM), https://slate.com/news-and-politics/2022/02/the-supreme-courts-shadow-docket-rulings-kee‌p-getting-worse.html [https://perma.cc/SQ83-2JZ9]; Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020, 12:12 PM) [hereinafter Vladeck, Partisan Decisions], https://slate.com/news-and-politics/2020/08/sup‌reme-court-shadow-docket.html [https://perma.cc/TB24-H3MX]; Lydia Wheeler, US Supreme Court ‘Shadow Docket’ Quieter So Far This Term, Bloomberg L. (Dec. 27, 2022, 4:45 AM), https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X4VOEVIO0‌00000?bna_news_filter=us-law-week#jcite [https://perma.cc/DL7R-HWCG]. ↑
  12.  E.g., Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket: Hearing Before the S. Comm. on the Judiciary, 117th Cong. (2021) (testimony of Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law), https://www.judiciary.senate.gov/imo/media/doc/Vladeck%20testimony1.pdf [https://perma.cc/6MUZ-S24D]. ↑
  13.  E.g., Merrill v. Milligan, 142 S. Ct. 879 (2022). ↑
  14.  E.g., Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (per curiam). ↑
  15.  E.g., Chrysafis v. Marks, 141 S. Ct. 2482 (2021). ↑
  16.  This is so even though they are not formally precedential. See, e.g., 1A, Remaking America: The Supreme Court, the Shadow Docket, and America’s Trust, NPR, at 11:38 (Apr. 25, 2022, 3:53 PM), https://www.npr.org/2022/04/25/1094620949/remaking-america-the-supreme-court-the-shadow-docket-and-americas-trust [https://perma.cc/BVM8-UAV6]; Alex Badas, Billy Justus & Siyu Li, Assessing the Influence of Supreme Court’s Shadow Docket in the Judicial Hierarchy, 43 Just. Sys. J. 609, 612–14, 21 (2022); McFadden & Kapoor, supra note 7, at 830–31. ↑
  17.  For analyses of judicial avoidance, see, e.g., Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1, 18–19 (2016); David C. Vladeck & Mitu Gulati, Judicial Triage: Reflections on the Debate Over Unpublished Opinions, 62 Wash. & Lee L. Rev. 1667, 1676, 1680–84 (2005). ↑
  18.  E.g., Mitu Gulati & C.M.A. McCauliff, On Not Making Law, 61 L. & Contemp. Probs. 157, 173 (1998). To quote Justice Frankfurter on the matter of emergency docket decisions and why they are given limited attention: “If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive . . . .” Maryland v. Balt. Radio Show, Inc., 338 U.S. 912, 918 (1950) (Frankfurter, J., respecting denial of certiorari). ↑
  19.  See Black & Bannon, supra note 9; Vladeck, Partisan Decisions, supra note 11; Damon Root, Elena Kagan’s Valid Critique of the Supreme Court’s ‘Shadow Docket,’ Reason (July 20, 2022, 11:58 AM), https://reason.com/2022/07/20/elena-kagans-valid-critique-of-the-supreme-courts-shadow-docket [https://perma.cc/LHW9-9QKM] (“[C]omplaints about the shadow docket have mostly come from liberal legal experts and activists. . . . Put simply, the Supreme Court’s recent spate of high-profile emergency interventions have largely aligned with conservative policy preferences.”); David S. Cohen, The Supreme Court’s ‘Shadow Docket’ Is Even Shadier than It Sounds, Rolling Stone (Apr. 10, 2022), https://www.rollingstone.com/politics/political-commentary/supreme-court-shadow-docket-conservative-agenda-1335473 [https://perma.cc/D3YF-D32C] (“[T]his ultraconservative Supreme Court is exploiting a mechanism that used to be reserved for the most emergent matters that come to the Court to further stamp its right-wing view on American law and society.”); Kimberly Strawbridge Robinson, Supreme Court Conservatives Want More Robust ‘Shadow Docket,’ Bloomberg L. (July 8, 2022, 12:51 PM), https://news.bloomberglaw.com/us-law-week/supreme-courts-conservatives-want-more-robu‌st-shadow-docket [https://perma.cc/EKB4-9K2K] (quoting Kimberly Humphrey, Federal Courts Legal Director for Alliance for Justice: “What stands out is that . . . conservative interests are the big winners when the Court grants emergency relief . . . .” (internal quotation marks omitted)). ↑
  20.  410 U.S. 113 (1973); Jeffrey Rosen, So, Do You Believe in ‘Superprecedent’?, N.Y. Times (Oct. 30, 2005), https://www.nytimes.com/2005/10/30/weekinreview/so-do-you-believe-in-superprecedent.html [https://perma.cc/DG75-DUCP]. ↑
  21.  See Claire Hansen, Supreme Court Order on Texas Abortion Ban Puts ‘Shadow Docket’ in the Spotlight, U.S. News & World Rep. (Sept. 3, 2021), https://www.usnews.com/‌news/national-news/articles/2021-09-03/supreme-court-order-on-texas-abortion-ban-puts-shadow-docket-in-the-spotlight [https://perma.cc/YF6N-K7JU]. ↑
  22.  Even the staunchest critics of the shadow docket acknowledge this point. See Paul LeBlanc, Here’s What the ‘Shadow Docket’ Is and How the Supreme Court Uses It, CNN (Apr. 7, 2022, 9:24 AM), https://www.cnn.com/2022/04/07/politics/shadow-docket-supreme-court/index.html [https://perma.cc/9UNS-U27Y] (quoting Steve Vladeck as saying: “[The emergency] orders are unsigned and they’re unexplained, and 99% of the time we don’t care because they’re also entirely anodyne”). ↑
  23.  Mark Rienzi, The Supreme Court’s “Shadow” Docket—A Response to Professor Vladeck, Nat’l Rev. (Mar. 16, 2021, 1:30 PM) (emphasis omitted), https://www.nationalrevi‌ew.com/bench-memos/the-supreme-courts-shadow-docket-a-response-to-professor-vladeck [https://perma.cc/5X72-U5W4]; see also Nina Totenberg, Justice Alito Calls Criticism of the Shadow Docket ‘Silly’ and ‘Misleading,’ NPR (Sept. 30, 2021, 7:12 PM), https://www.npr.org/2021/09/30/1042051134/justice-alito-calls-criticism-of-the-shadow-docket-silly-and-misleading [https://perma.cc/76KS-LHEF] (quoting Justice Alito: “‘The truth of the matter . . .  is that there is nothing shadowy’ or really new about the process”); Melissa Quinn, Amy Coney Barrett Says Supreme Court Justices Aren’t “Partisan Hacks,” CBS News (Sept. 13, 2021, 9:01 AM), https://www.cbsnews.com/news/amy-coney-barrett-supreme-court-justices-partisan-hacks [https://perma.cc/R983-D3AK] (quoting Justice Barrett shortly after the Court issued emergency rulings in which the three Democrats were in dissent: “[My goal] is to convince you that this court is not comprised of a bunch of partisan hacks” (internal quotation marks omitted)). ↑
  24.  See Nina Totenberg, The Supreme Court Is the Most Conservative in 90 Years, NPR (July 5, 2022, 7:04 AM), https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative [https://perma.cc/3KJP-UZU4]. ↑
  25.  See Nicholas Goldberg, Column: After the Supreme Court Overturns Roe vs. Wade, What’ll It Do for an Encore?, L.A. Times (June 2, 2022, 3:08 AM), https://www.latimes.com/‌opinion/story/2022-06-02/supreme-court-roe-precedent-religious-liberty-federal-regulation [https://perma.cc/MV57-5TTS]. ↑
  26.  The “sneaky” behavior accusation with regards to the current Court’s rulings on abortion has shown up elsewhere as well. See Michael Barbaro, The Daily, A Secret Campaign to Influence the Supreme Court, N.Y. Times, at 1:29 (Nov. 29, 2022), https://www.nytimes.com/‌2022/11/29/podcasts/the-daily/supreme-court-abortion-roe-v-wade.html [https://perma.cc/57‌WK-GJZX]. ↑
  27.  Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2500 (2021) (Kagan, J., dissenting). ↑
  28.  For this data on merits determinations from the 2021 Term, see Lee Epstein, Andrew D. Martin & Kevin Quinn, Provisional Data Report on the 2021 Term 5–7 (2022), https://epstein.usc.edu/s/2021TermDataReport.pdf [https://perma.cc/MH5N-QCPZ]. ↑

  29.  See Oriana González & Danielle Alberti, The Political Leanings of the Supreme Court Justices, Axios (June 24, 2022), https://www.axios.com/2019/06/01/supreme-court-justices-ideology [https://perma.cc/EMR9-TBN3] (reporting, based on Martin-Quinn scores, the ranking of Justices in terms of conservatism); see also Epstein, Martin & Quinn, supra note 28, at 4. ↑

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