A Shadow’s Influence? How the Shadow Docket Influences Public Opinion

• Published date: 01 May 2024
• DOI: http://doi.org/10.1177/1532673X231220645
• Author: EmiLee Smart
• Date: 01 May 2024

Article

American Politics Research

2024, Vol. 52(3) 249–263

© The Author(s) 2023

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DOI: 10.1177/1532673X231220645

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A Shadow’sInf‌luence? How the Shadow

Docket Inf‌luences Public Opinion

EmiLee Smart

1



Abstract

Does increased use of the shadow docket inf‌luence public opinion of the Supreme Court? In recent years, the shadow docket of

the Supreme Court has been used with increased frequency to make important decisions. The little resear ch done previously on

this docket has led to speculation that the shadow docket creates potential problems with perceptions of legitimacy for the

Court. I theorize that procedures matter in changing public opinion of an institution when the procedures are nontransparent,

stray from expected norms, and are thus perceived as politically unfair. I administered a survey experiment andf‌ind evidence to

suggest that use of the shadow docket procedure does lead to less support for decisions as well as an increased support for

measures of broad court curbing. The results have important implications for approval of the Court as well as the role of the

Court in a transparent democracy.

Keywords

supreme, court, docket, legitimacy, public opinion, the new normal

In September of 2021, the Supreme Court used its shadow

docket to deny emergency relief to groups who opposed the

Texas abortion ban (Whole Women’s Health et al. v. Jackson

595 U.S._ 2021). The decision was made by f‌ive conservative

justices on the Court without hearing oral arguments. The

decision resulted in the U.S. Supreme Court banning all

abortions after 15 weeks. The Court did not accompany the

verdict with the normal lengthy legal explanation in a ma-

jority opinion. In fact, the Court announced the verdict in just

one paragraph, a common trait of shadow docket decisions.

1

The shadow docket is a collection of Court orders used to

address decisions such as petitions for certiorari, emergency

petitions, and petitions for procedural changes in pending

cases on the merits docket (Baude 2015;Vladeck 2019,

2023). The Court can resolve legal questions on the shadow

docket, dismiss the case to the lower courts, or move the case

to the Supreme Court’s regular docket. The name “shadow

docket”is frequently used by the media, though subsets of the

docket have been referred to by other names. When the Court

addresses questions on this docket, cases are usually pro-

cessed quickly without full debrief‌ing from all the parties,

without oral arguments, and frequently without the full

consent or even a majority of the Court.

Historically, the Supreme Court used the shadow

docket almost exclusively for procedural orders related to

pending cases on the merits. The cases were usually resolved

quickly and quietly. However, the previously mentioned

abortion case was not resolved quietly, as four justices wrote

dissents. Justice Kagan wrote a pointed dissent not just

against the case outcome but against the use of the shadow

docket as a way to resolve the case:

Today’sruling illustrates just how far the Court’s shadow-docket

decisions may depart from the usual principles of appellate

process. That ruling, as everyone must agree, is of great con-

sequence. Yet the majority has acted without any guidance from

the Court of Appeals—that is right now considering the same

issues. It has reviewed only the most cursory party submissions,

and then only hastily. And it barely bothers to explain its

conclusion—that a challenge to an obviously unconstitutional

abortion regulation backed by a wholly unprecedented en-

forcement scheme is unlikely to prevail. In all these ways, the

majority’s decision is emblematic of too much of this Court’s

shadow docket decision making—which every day becomes

more unreasoned, inconsistent, and impossible to defend.

(U.S.594 No. 21A24)

1

Department Political Science, University of Kentucky College of Arts and

Sciences, Lexington, KY, USA

Corresponding Author:

EmiLee Smart, Department Political Science, University of Kentucky College

of Arts and Sciences, 1615 Patterson Off‌ice Tower, Lexington, KY 40506-

0027, USA.

Email: esi237@g.uky.edu