The Shadow Docket

• Author: Robert V. Percival
• Position: Robert F. Stanton professor of law and the director of the Environmental Law Program at the University of Maryland Carey School of Law. He is a former law clerk for the late Supreme Court Justice Byron R. White
• Pages: 27-33

JANUARY/FEBRUARY 2022 | 27

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

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

Robert V. Percival is the Rober t F. Stanton

professor of law a nd the director of the Env ironmental

Law Program at t he University of Mar yland Carey School

of Law. He is a former l aw clerk for the late Supre me

Court Just ice Byron R. White.

LEAD FEATURE

The Shadow Docket

Orders issued without pl enary review and oral argu ment used to be rare at the Supreme

Court. at changed under the Trump admin istration. e result was emergency stays

issued on average ever y two months, almost exclusively favoring con servative policy outcomes

SIX YEARS AGO, the Supreme Court

made an unprecedented intervention

in an environmental case, derailing the

most important U.S. eort to combat

the global climate crisis. Because the

petitioner had made an emergency

motion, the Court dispensed with

plenary review and oral argument in staying the

Obama administration’s Clean Power Plan to con-

trol greenhouse gas emissions from power plants.

Using what is now known as its shadow docket, the

justices voted 5-4 to reverse a unanimous decision

by the D.C. Circuit to let the regulations take eect

while it heard legal challenges to them.

In the last year, the new conservative super-majority

on the Court has come under re for several shadow-

docket decisions. It blocked local COVID prevention

mandates as infringements on religious liberty, struck

down the Biden administration’s extension of the Cen-

ters for Disease Control’s eviction moratorium, refused

to block a Texas law that eectively bans abortions, and

denied the Biden administration’s request to stay a dis-

trict court decision dictating immigration policy. ese

actions have provoked strong criticisms from dissent-

ing justices. Justice Breyer told an interviewer that the

refusal to block the Texas abortion law was “very, very,

very wrong” and that “it’s a huge mistake to decide ma-

jor things without full argument.”

Responding to the same decision, Justice Ka-

gan attacked the Court’s use of the shadow docket:

“Today’s ruling illustrates just how far the Court’s

‘shadow-docket’ decisions may depart from the

usual principles of appellate process. at ruling,

as everyone must agree, is of great consequence. Yet

the majority has acted without any guidance from

the Court of Appeals — which is right now con-

sidering the same issues.” Kagan went on to blast

the hurried process. e Court, she said, “has re-

viewed only the most cursory party submissions,

and then only hastily. And it barely bothers to ex-

plain its conclusion — that a challenge to an obvi-

ously unconstitutional abortion regulation backed

by a wholly unprecedented enforcement scheme is

unlikely to prevail.”

In conclusion, Kagan chided the majority for a

decision she called “emblematic of too much of this

Court’s shadow-docket decisionmaking — which

every day becomes more unreasoned, inconsistent,

and impossible to defend.”

Most orders the Court issues involve routine

matters of case management, and the Court has is-

sued them since its very rst term in 1790. But in

recent years the Court has used the shadow docket

to make highly consequential legal decisions with-

out benet of plenary review. ese orders do not

reveal any of the votes unless some justices insist

that their dissents be noted. Usually they include

little or no explanation of whatever legal reason-

ing produced them. Many of them, like the deci-

sion to block the Clean Power Plan, are rulings

on motions for stays that can dramatically change

the status quo. Law professor Portia Prado has de-

scribed judicial stay decisions as “nearly a law-free

zone” because of the absence of uniform, principled