U.S. Supreme Court

House panel considers reforms to deal with Supreme Court's shadow docket

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Lawmakers expressed concerns about the U.S. Supreme Court’s shadow docket of emergency opinions during a hearing Thursday by a House judiciary subcommittee.

Lawmakers suggested ways to make decisions in such cases more transparent and how to reduce the number of shadow docket decisions, report Law360, Law.com, Courthouse News Service and SCOTUSblog. How Appealing links to additional coverage and a video of the hearing.

The shadow docket refers to emergency orders and summary decisions that are reached outside the Supreme Court’s normal merits docket in which the court issues decisions after oral arguments. Often, shadow docket decisions are unsigned, and they often provide limited reasoning.

Recent shadow docket decisions have dealt with death penalty appeals, COVID-19 restrictions, abortion and election rules.

Shadow docket decisions have increased since the death of Justice Ruth Bader Ginsburg and the retirement of Justice Anthony M. Kennedy, Stephen Vladeck, a professor at the University of Texas School of Law, told the panel.

“It’s no coincidence in my view that the brakes have truly come off” now that those justices are no longer on the court, Vladeck said. He also acknowledged that “a confluence of factors” are affecting the uptick.

Michael Morley, a professor at the Florida State University College of Law, suggested that the shadow docket is increasing because federal judges were using injunctions with nationwide reach to block Trump administration policies. Democratic U.S. Rep. Hank Johnson of Georgia said the court was also reacting to an increase in emergency requests by the Trump administration.

Witnesses and lawmakers suggested these reforms, according to the articles:

• Mandate signed opinions and disclosure of how the justices voted to increase transparency.

• Send a bipartisan letter seeking information about justices’ votes and voting process in cases with high public interest.

• Create a special court to handle emergency applications in some cases.

• Shift certain categories of cases to the merits docket.

• Restrict the use of nationwide injunctions.

• Create appellate procedures that will allow faster adjudication of some types of cases, such as death penalty appeals.

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