UNPRECEDENTED PRECEDENT: THE CASE AGAINST UNREASONED "SHADOW DOCKET" PRECEDENT.

• Author: Waldhauser, Cole

INTRODUCTION

This Article examines the precedential effects of the Supreme Court's so-called "shadow docket." Specifically, I discuss the difficulties confronting lower court judges, exploring how their application of "shadow precedent" has illuminated the dangers in attributing precedential value to the Supreme Court's emergency orders. Though the Court has long issued non-merits orders for routine procedural matters, its recent application of those orders has stirred uncertainty over their precedential weight. The established consensus was that, although public, these orders were of little precedential value. (2) Emergency orders in particular were seen as an important but temporary tool to preserve the status quo until a decision on the merits was reached. Today's Court, however, has upended this agreement and transformed the "shadow docket" into a new tool--one that disrupts the status quo and assigns its rulings precedential effect. It is because of this unprecedented use of the "shadow docket" that the rules must now change. And while scholars and judges have begun to sort the Court's stay decisions into categories of precedential force, (3) these proposals have not yet been adopted as a lodestar for lower courts.

Trial and appellate courts rely heavily on Supreme Court precedent to make sense of the ambiguities before them. A district court judge may want to know the proper evidentiary rules for a hearing contesting the veracity of a search warrant, or whether she may impute prior legislative history and intent to a recodification of an earlier statute. The answers to many of the lower courts' murky questions can be found in the binding authority of the courts above. Critical in their application of that authority is the reasoning underlying the rule. After all, "[i]t is emphatically the province and duty of the judicial department to say what the law is," (4) and "once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law." (5) Well-reasoned opinions are instructive for the courts below, offering clarity and a rationale that lower courts can confidently follow and apply. Full-bodied opinions help distinguish holdings from dicta, and often guide litigants as they navigate their claims.

This Article stresses why the Supreme Court should refrain from binding any court's hands without explaining why. The Article offers a cabined view of the shadow docket. It looks not at litigation trends, the politicization of the Court, or supposed doctrinal shifts among the justices, (6) but instead at the sole question of precedential weight. I advocate for a more transparent and consistent non-merits docket, arguing for an all-or-nothing approach: either the order earns its precedence through (i) a reasoned opinion and (ii) signatures from the Justices, or it is devoid of precedential value in future cases. Should the Court choose not to impose this distinction on its own accord, appellate and district courts should sort the Court's decisions according to this simple criterion.

1. THE SHADOW DOCKET AND ITS PRECEDENTIAL EFFECT

   The term "shadow docket" was coined by University of Chicago law professor William Baude, who in 2015 defined the phrase as "a range of order and summary decisions that defy [the Supreme Court's] normal procedural regularity." (7) Baude describes the "debatable and mysterious" nature of the stays and injunctions granted in the Court's 2013 Term, commenting on the dearth of reasoning in those decisions. (8) It is this mystery that likely inspired the "shadow" in Baude's "shadow docket" label. Indeed, it seems that a lack of transparency is among his chief concerns: "It is on technical procedural and administrative questions," he suggests, "when the spotlight is off that the Court's decisions seem to deviate from its otherwise high standards of transparency and legal craft." (9) Part of those "high standards of transparency" include full briefing, oral argument, and reasoned opinions--all procedures absent from the Court's emergency orders. Their absence is most insidious where the emergency orders implicate questions of significant public import, which are precisely the type of orders the Court has issued at alarming rates in Terms of late.

   Baude's work then begs the question of why the orders docket--a longstanding feature of the Court--has only recently garnered criticism. (10) After all, ruling on procedural matters and requests for emergency relief, without the benefit of full briefing and oral argument, is part of the Court's established practice. (11) So, why the concern? The answer lies with three variables: (i) a growing frequency, in both requests and grants, of emergency and extraordinary relief; (ii) the expanding systemic impact of that relief; and (iii) the Court assigning its orders precedential effect. (12)

   The "frequency" variable is borne out in statistics. Federal courts scholar and "shadow docket" oracle Stephen Vladeck recently explained that

   in less than three years, the Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone). During the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications--averaging one every other Term. (13) And this uptick in applications brings an uptick in grants; "more [grants of] emergency relief than ever before." (14) Thus, the federal government has found a backchannel through which it can bypass the "ordinary appellate mechanics," and a fruitful one at that. (15) This method evades lower court scrutiny and appeals to doctrinal shifts on the Court--a strategy in which the Justices have readily acquiesced. (16) Worse, by limiting emergency relief to predominantly the federal government, the Court necessarily favors the governing party. Yet when the "shadow docket" is plagued with "unreasoned inconsistent and impossible to defend" decision making, as Justice Kagan wrote in her Whole Woman's Health I dissent, (17) that favoritism skews toward the Court's supermajority and conservative policies, as was the case during the Trump administration. (18)

   Then there is the substantive effect of the orders. Many of the recent grants have been stays in district court injunctions of federal or state policies, authorizing controversial, even "flagrantly unconstitutional," (19) laws to remain in effect. (20) These orders run the gamut of election laws, immigration policies, eviction moratoria, and abortion protections, and each tends to result in deprivations--not preservations--of constitutional rights. (21) Entwined with the impact of the Court's orders is the core focus of this Article: the precedential force conferred upon those orders. Emergency orders, though theoretically temporary, often become the "final word on the issue." (22) The grant or denial of an emergency stay may well influence more lives than just those as party to a case. And increasingly, the Court is giving dispositive weight to its emergency orders, most of which are devoid of any explanation or guidance for lower courts. (23) Of the "shadow docket's" myriad critiques, the concern over precedent seems the most universally prevalent, animating discourse across political ideologies. (24)

   Indeed, evidence of this phenomenon continues to mount. There is a growing list of cases confirming the Justices' intent to establish precedent through its emergency orders, perhaps none more baldly than Roman Catholic Diocese of Brooklyn v. Cuomo. (25) The case involved a church's motion for preliminary injunction seeking relief from the New York Governor's Executive Order, which imposed limits on large religious gatherings in response to the COVID-19 pandemic. (26) After the motions were denied by the district and appellate courts, the Supreme Court granted emergency relief for the church, enjoining enforcement of the Executive Order. (27) Diocese of Brooklyn has since been cited hundreds of times, including by the Supreme Court, in spite of its "emergency posture, lack of oral argument, and truncated briefing schedule." (28) Ninth Circuit Judge Milan D. Smith, Jr. has regarded Diocese of Brooklyn as a "seismic shift in Free Exercise law," (29) and it has dictated numerous lower court outcomes. (30)

   For instance, in Branch v. Newsom, the Ninth Circuit held that Diocese of Brooklyn "alone confirms that California's prohibition on in-person instruction is not sufficiently tailored." (31) Likewise, in Air Force Officer v. Austin, the U.S. District Court for the Middle District of Georgia relied on Diocese of Brooklyn's Free Exercise doctrine to impose strict scrutiny on a military COVID-19 vaccine requirement, enjoining its enforcement against an Air Force officer. (32) All the while, the Court has given its blessing of such precedential effect, vacating lower court decisions that defy its Diocese of Brooklyn order. (33) In Tandon v. Newsom, the Court enjoined enforcement of California's restrictions on at-home gatherings, citing Diocese of Brooklyn as precedent no less than seven times. (34) In reversing the district and circuit courts, the Tandon Court invoked Diocese of Brooklyn's more exacting Free Exercise jurisprudence, stating that "government regulations are not neutral and generally applicable... whenever they treat any comparable secular activity more favorably than religious exercise." (35)

   Diocese of Brooklyn is but one precedential "shadow docket" case, emblematic of a larger pattern that is now fueling discourse amongst both critics and defenders. (36) It is time now for Congress to rein in the discretionary review power it granted the Supreme Court long ago and has continued to expand over the years. (37) This is not a radical call for the return to mandatory appellate review; the Court need not consider the briefs, hold oral argument, or resolve the merits of each...