The process of getting an opinion form the U.S. Supreme Court can take months, and the rulings are often very specific. During the court’s summer break, emergency orders are issued that focus on specific issues such as individual cases involving the death penalty.
However, this pattern has changed over the years as decisions have been made outside of the court’s usual procedures. This has been particularly true over the last two weeks. The shadow docket, a shortened process also known as the shadow, has been moving at an astronomical pace, producing decisions related immigration, COVID-19, evictions, and most recently, abortion. These three decisions, which are dominated by the conservative wing, could have a huge impact on millions of people in fractions of the time and beyond the usual scrutiny that signed opinions can bring.
“My memory is that, in most cases, the Supreme Court would act in July or August to deal with something like a death penalty case. It was not like: What immigration law will be in our country? It wasn’t like: Will tenants have certain right? Jessica Levinson, Loyola Law School professor, said that it wasn’t the major substantive questions.
What IS THE NORMAL PROCESS?
Participants petition the court for cases to be heard. Acceptance of a case is followed by oral arguments before the justices. However, this was done via telephone during the coronavirus era. A case must have been reviewed and appealed in lower courts before this can happen. These deliberations form part of the material that the justices refer to. Parties interested in the case may submit amicus briefs.
After the arguments have been heard, the judges meet in conference to discuss the cases and vote preliminary. Draft opinions are shared and amended, and sometimes changed.
The entire process is deliberative. Justices make their decisions in lengthy legal opinions. It takes several months to go from oral argument to an issued opinion.
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WHAT HAPPENS AT THE SHAODW DOCKET
William Baude, University of Chicago Law School Professor, coined the term shadow docket. It skips many, if not all, of these steps. The main problem is that it lacks transparency and disclosure comparable to a normal docket. There was very little interaction between the court, participants, and the defendants and plaintiffs in the three most recent cases. Although none of the three major cases’ orders were signed, at least one ended protection for approximately 3.5 million Americans who claimed they would be evicted in the next two-months, according to Census Bureau data starting in August.
