Shadow Orders Keep Courts in Line

• Author: Jonathan H. Adler
• Position: Director, Coleman P. Burke Center for Environmental Law Case Western Reserve University
• Pages: 29-29

JANUARY/FEBRUARY 2022 | 29

Reprinted by permission from The Environmental Forum®, January/February 2022.

Copyright © 2022, Environmental Law Institute®, Washington, D.C. www.eli.org.

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Shadow Orders Keep Courts in Line

The Supreme Court’s opinions

in argued cases may attract

the most attention, but they

are only a small part of the Court’s

overall work. In a given term the

Court may decide 60 or 70 argued

cases, but it will consider and rule

on petitions and motions in thou-

sands more. It is these other deci-

sions that make up what is often

referred to as the shadow docket.

Although it has been around since

the nation's founding, this portion

of the Court's work is suddenly

controversial. There has been a

dramatic increase in the number of

cases in which the Court has been

willing to provide emergency or

extraordinary relief through orders

issued without argument.

The vast majority of shadow-

docket orders are denials of one

sort or another, such as the denial

of a petition that the Court hear a

case. A smaller portion consists of

consideration of pleas for extraor-

dinary relief, such as granting stays

or injunctions or vacating those

entered by lower courts. The

Court denies most of these re-

quests as well, but it is the growing

number of exceptions that attract

attention.

Scholars debate the reasons

the justices seem more willing to

grant extraordinary relief, and

whether the increase is a problem.

The lion’s share of relevant cases

involve tight timelines or extenu-

ating circumstances, as is the case

with election contests, executions,

and temporary COVID measures.

Many seem to involve a disconnect

between the current justices and

lower courts, as when the Court

has vacated lower court injunc-

tions and stays of execution where

such orders had not met the rel-

evant standard for judicial relief.



its obligation to superintend the

federal court system, and ensure

lower courts are using their equi-

table powers appropriately.

Where lower courts step out

of line, the justices are sometimes

moved to act. This occurred with

Juliana v. United States, the so-called

“Kids Climate Case,” in which the

Supreme Court twice signaled to

lower courts its displeasure with

the course of the proceedings.

Juliana was likely the most ambi-

tious and aggressive climate change



things the plaintiffs claimed the

federal government violated their

substantive due process rights to life

and liberty by failing to control the

emission of greenhouse gases. Juli-

ana presented audacious claims, but

it took more than aggressive plead-

ings to stir the justices into action.

The solicitor general only

sought Supreme Court interven-

tion after the district court denied

the federal government’s motion

to dismiss and blocked an inter-

locutory appeal, setting the stage

for intrusive discovery requests

against the federal government,

and the appeals court refused to

intervene. On the SG’s second try,

the Court issued an order denying

relief, but making clear a major-

ity of justices believed the district

court was out of line. The lower

courts got the message, and the

case was ultimately dismissed on

standing grounds.

The justices also used the

shadow docket to put the Obama

administration’s Clean Power Plan

on ice. As with Juliana, the Court’s

intervention is best seen as reac-

tive, here to maintain the status

quo so as to ensure courts would

have an adequate opportunity to

consider challenges to EPA’s aggres-

sive regulatory plan. In a prior case,

Michigan v. EPA, judicial review was

effectively thwarted, as the agency’s

rule was held unlawful only after

compliance had been achieved. The

folks at EPA celebrated this fact,

and it appears the justices were not

amused and sought to prevent a

repeat occurrence. In this regard,

the Court issued a stay so as to

preserve its ability to engage in

meaningful judicial review.

The Court’s forays into the

Juliana and Clean Power Plan litiga-

tion were unexpected. They may

also be a sign of things to come. In

both cases, a majority of the Court

exhibited impatience with aggres-

sive judicial or regulatory moves

responding to the threat of climate

change without express congression-

al authorization. This is further evi-

dence it may take legislative action

to get climate policy on course, and

keep it out of the shadows.

“ere has been a dramatic

increase in the number of cases

in which the Court has been

willing to provide emergency

or extraordinary relief through

orders issued without argument”

Jonathan H. Adler

Director, Coleman P. Burke Center

for Environmental Law

Case Western Reserve University