Team Trump is loving this 'shadow docket' Supreme Court loophole

The Supreme Court’s new term is barely three weeks old, and already public discussion has been dominated by transparent Republican efforts to use the court to secure political victories — or, at least, to avoid political defeats. There was former President Donald Trump’s effort to have the justices step into the ongoing dispute over his classified Mar-a-Lago files. There was the attempt by Wisconsin taxpayers to have the court shut down President Joe Biden’s student loan debt forgiveness program. There was South Carolina Sen. Lindsey Graham’s request that the court block a lower-court ruling requiring him to answer questions before a Fulton County grand jury investigating attempted interference in the 2020 election. And, most recently, there was Arizona state Sen. Kelli Ward's request to block a subpoena from the Jan. 6 committee.

All these came as requests for emergency relief — efforts to have the court issue interim rulings on its so-called “shadow docket,” temporarily freezing the relevant lower-court decision while the appeals process plays out. And the common thread uniting them wasn’t lost on commentators; Steven Mazie, who covers the court for The Economist, tweeted that the docket is becoming a magnet for "generalized GOP gripes.”

There’s a lot more truth to Mazie’s quip than the justices might care to admit. Indeed, one of the most troubling features of these rulings, the majority of which come with no analysis, is their rather predictable tendency to favor Republicans and/or hurt Democrats. But an equally significant part of the story, albeit one to which we tend to pay less attention, is that even when the court doesn’t play to type — and doesn’t side with Republicans — its refusals come with no suggestion that parties are overstepping. Perhaps worst of all, these shadow docket “emergency” procedures allow unlawful policies to continue, sometimes for years. And they do this without justices ever having to take a real stand on the merits of individual arguments.

As I explain in detail in my forthcoming book on the shadow docket, the real explosion in unsigned, unexplained Supreme Court orders came during — and at the behest of — the Trump administration. Team Trump, despite regularly having its policy initiatives blocked by (ideologically diverse) lower courts, successfully sought emergency relief from the court on an unprecedented number of occasions. The Justice Department between 2001 and 2017 (across the very different presidencies of George W. Bush and Barack Obama) sought emergency relief a total of eight times (prevailing in four of them). Trump’s lawyers asked the court for such protection 41 different times in four years.

The real explosion in unsigned, unexplained Supreme Court orders came during — and at the behest of — the Trump administration.

And the justices largely acquiesced — granting 28 of Trump’s applications in whole or in part. It wasn’t that the court was ultimately upholding the challenged policies; in most cases, the justices’ unsigned, unexplained ruling was the court’s last word on the subject — allowing policies lower courts blocked to go into effect for the duration of the Trump administration without the court’s substantive blessing. Instead, the upshot of these rulings was that the justices could use these unsigned, unexplained orders to shape policy without making law. Four of Trump’s controversial asylum policies, for instance, remained in effect until the Biden administration rescinded them because of unexplained Supreme Court orders — even though every court to actually decide whether they were lawful held that they were not.

And this phenomenon hasn’t ended with the Trump administration. The court has been just as active in the first 21 months of the Biden administration, whether blocking federal policies like the Covid vaccination-or-testing requirement that the Occupational Safety and Health Administration sought to impose on most businesses; blocking state Covid policies on religious liberty grounds; or clearing the way for states to use congressional maps that lower courts had struck down. Time and again, however, these actions benefited Republicans.

Perhaps the best evidence of that phenomenon is the applications for emergency relief the court is now receiving — in the Trump case, the Wisconsin taxpayers case and the Graham case. The point is not that they’re all being granted; Trump and the Wisconsin taxpayers lost, and although Graham won a brief reprieve from Justice Clarence Thomas on Monday, the justices may yet rule against him. Indeed, perhaps because of mounting public criticism of the court’s use (and abuse) of the shadow docket, at least some of the justices appear to be voting to grant relief somewhat more selectively.

Instead, the point is that the court is doing absolutely nothing to dissuade litigants from trying to use the shadow docket to score political points — or to dissuade skeptical members of the public from the belief that the fix is in. If the worst-case scenario for filing one of these applications is a summary notation denying relief, what’s the downside of doing so? The justices may not be validating the GOP gripes that are increasingly making their way onto the shadow docket, but they’re not doing anything to repudiate or disincentivize these efforts, either. There is therefore little incentive for litigants not to try ever-more-insane theories for seeking the justices’ emergency intervention — and little evidence for those increasingly skeptical of the court’s legitimacy that the justices are pushing back on this trend.

Part of the problem is the broader pathology of the shadow docket — on which the default is (and always has been) to not provide an explanation. Against that backdrop, the unusual move would be to provide a rationale for why relief has been denied, rather than not doing so. But part of the problem is also a more general reluctance on the part of the current court to criticize those who so transparently seek to take advantage of it. At no point during the Trump administration, for instance, did anyone other than Justice Sonia Sotomayor suggest that the government was taking advantage of the shadow docket to achieve policy victories in cases in which the policies were almost certainly unlawful. And even as criticisms of the shadow docket have mounted, the justices have largely kept their fire directed on each other — rather than on the lawyers plying them with far more of these requests than had, until recently, been the norm.

In a speech at Notre Dame Law School last September, Justice Samuel Alito argued that the reason for the rise in the number of emergency applications the court has granted in recent years is simply tied to more applications. In fact, this puts the cart before the horse. The surge in grants of emergency relief predated the more recent uptick we’ve seen in emergency applications. The justices weren’t reacting to a trend; they were (and still are) the trend. And it’s increasingly clear that the only way that’s going to change is if they decide that they’re tired of it — or, at least, of the increasingly partisan message that this pattern of behavior sends.