Presidential Commission on the Supreme Court of the United States
- ↑ See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015); see also Presidential Commission on the Supreme Court of the United States 1 n.1 (June 30, 2021) (written testimony of Samuel L. Bray, Notre Dame Law School) [hereinafter Bray Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/06/Bray-Statement-for-Presidential-Commission-on-the-Supreme-Court-2021.pdf (defining the shadow docket as “the portion of the orders list that is substantive, not including the mere grant or denial of a petition for a writ of certiorari”).
- ↑ See Presidential Commission on the Supreme Court of the United States 4–5 (June 30, 2021) (testimony of Stephen I. Vladeck, University of Texas School of Law) [hereinafter Vladeck Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/06/Vladeck-SCOTUS-Commission-Testimony-06-30-2021.pdf (presenting evidence of an increase in emergency orders in important cases, while also acknowledging that “[t]here’s no perfect way to measure the rise of the shadow docket” and that “it’s hard to separate out the significant rulings (which are always a relatively small percentage of the total number of orders the Court hands down) from the insignificant ones”). Professor Vladeck documents a general upward trend, from 2005 through 2020, in the number of orders that either grant or vacate a stay or injunction—“orders that, through whatever mechanism, change the status quo” set by the lower courts. Id. Although this measure omits rulings in which the Court denied an application to grant or vacate a stay or injunction, such orders can also be of great consequence. Professor Vladeck also presents indicators of shifts in the qualitative importance of the Court’s emergency orders in recent years. Id. at 6–10.
- ↑ The leading critic on these issues is Professor Stephen Vladeck. See, e.g., The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on the Courts, Intellectual Prop. & the Internet of the H. Comm. on the Judiciary, 117th Cong. (2021) (statement of Stephen I. Vladeck, University of Texas School of Law), https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-VladeckS-20210218-U1.pdf; Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (2019) [hereinafter Vladeck, The Solicitor General and the Shadow Docket]; Vladeck Testimony, supra note 8. For other critics of the Court’s use of emergency rulings, see, for example, The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on the Courts, Intellectual Prop. & the Internet of the H. Comm. on the Judiciary, 117th Cong. (2021) (statement of Loren L. AliKhan, Solicitor General, District of Columbia) [hereinafter AliKhan House Testimony], https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-AliKhanL-20210218-U1.pdf; Mark Walsh, The Supreme Court’s ‘Shadow Docket’ Is Drawing Increasing Scrutiny, A.B.A. J. (Aug. 20, 2020, 9:20 AM), https://www.abajournal.com/web/article/scotus-shadow-docket-draws-increasing-scrutiny. Although emergency orders—the focus of this section—have received the most attention in recent debates, commentators also continue to point to concerns about the Court’s use of summary reversals. See, e.g., Presidential Commission on the Supreme Court of the United States 11–12 (June 25, 2021) (testimony of Michael R. Dreeben, O’Melveny & Myers LLP), https://www.whitehouse.gov/wp-content/uploads/2021/06/Dreeben-Statement-for-the-Presidential-Commission-on-the-Supreme-Court-6.25.2021.pdf; Richard C. Chen, Summary Dispositions as Precedent, 61 Wm. & Mary L. Rev. 691 (2020); Edward A. Hartnett, Summary Reversals in the Roberts Court, 38 Cardozo L. Rev. 591 (2016); see also Barry Friedman & Maria Ponomarenko, To Rein in Abuse by the Police, Lawmakers Must Do What the Supreme Court Will Not, N.Y. Times (Oct. 27, 2021) (critiquing recent summary reversals and arguing that the decisions escaped media attention “because the court handled them on its shadow docket”).
- ↑ On September 30, 2021, Justice Alito gave a public address on “The Emergency Docket” at Notre Dame Law School in which he responded to many of the critiques of the Court’s recent orders. The address was livestreamed, but a recording is not publicly available. See https://events.nd.edu/events/2021/09/30/justice-samuel-alito-the-emergency-docket/. See also, e.g., Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2500 (2021) (Kagan, J., dissenting) (contending that the ruling “illustrates just how far the Court’s ‘shadow docket’ decisions may depart from the usual principles of appellate process,” and “is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend”); Adam Liptak, Justice Breyer on Retirement and the Role of Politics at the Supreme Court, N.Y. Times (Aug. 27, 2021), https://www.nytimes.com/2021/08/27/us/politics/justice-breyer-supreme-court-retirement.html (quoting Justice Breyer in an interview: “I can’t say never decide a shadow-docket thing,” he saId. “Not never. But be careful. And I’ve said that in print. I’ll probably say it more.”).
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