Bloomberg Law
Sept. 23, 2021, 8:00 AM

SCOTUS ‘Shadow Docket’ Decisions Impact Americans’ Liberties

James Brosnahan
James Brosnahan
Morrison & Foerster LLP

Why are members of the Senate Judiciary Committee and many legal commentators raising serious questions about the U.S. Supreme Court’s abuse of its summer “shadow docket?”

The “shadow docket” was a phrase coined by University of Chicago Law School professor William Baude in 2015, and refers to the period of time between the court’s recess, which usually occurs around July 1, and the commencement of public court activities on the first Monday in October. The court issues decisions without the usual extended briefing and oral argument, and entertains emergency applications during this period. The controversies are not about the number of applications made to the court, but about the unusual methods used by a majority of the Justices to decide important matters.

This summer, there were two opinions of the court and 11 opinions related to court activity. In contrast, in 2016, before President Trump took office and made appointments to the Supreme Court, the justices issued no opinions and just three opinions related to court activity.

This summer, the court issued several troublesome rulings impacting the liberties of Americans.


On Sept. 1, in a 5-4 decision, the court denied an injunction of the Texas abortion law, ignoring prior injunction decisions that demand that any court grant or deny an injunction only after analyzing the balance of hardships of the parties. Women pregnant by incest or rape are now denied abortions in Texas after the first six weeks of pregnancy.

Recent Gallop polling shows 80% of Americans favor abortion in certain circumstances and 60% favor abortion in the first trimester. Texas forbids all abortions after six weeks. The court failed to analyze the effect on the public of the Texas statute which is also required in injunction proceedings. New York Times legal columnist Linda Greenhouse wrote in a Sept. 12 article titled, “God Has No Place on The Supreme Court” in which she suggested, “The country lurches toward theocracy.”

The Supreme Court‘s ruling also suffered from an unseemly haste. In an unusually caustic dissent, Chief Justice John G. Roberts wrote, “We are asked to resolve these novel questions—in the course of two days, without the benefit of consideration by the District Court or Court of Appeals—without ordinary merits briefing and without oral argument.”

During the last year, the Supreme Court has taken argument by telephone which clearly could have been done here.


On Aug. 24, the court, in Biden v. Texas, allowed the Trump border policy that individuals seeking asylum in the U.S. must wait in Mexico, even though it had been rescinded by the Biden administration. The Trump policy survived as the Supreme Court held the appeal by the Biden administration was likely arbitrary and capricious.


On Aug. 26, in Alabama Association of Realtors v. HHS, the Supreme Court, without full briefing or argument, allowed evictions to proceed all over the country, despite an order from the Centers for Disease Control and Prevention that would have reduced cases of the virus and limited increases in our unhoused population, already 500,000 plus nationally.

On the balance of hardships, the court accepted the possible loss or delay of receiving rent money over the serious illness or death by huge numbers of the public.

On Aug. 12, in Chrysafis v. Marks, the Supreme Court in a one-page opinion and by a vote of 6 to 3, without balancing hardships, enjoined a New York state statute that prevented eviction and foreclosure. In support of the New York statute, the state argued it was preventing sickness, homelessness, and death. The New York landlords argued damage by delay and possible loss of rent money. The majority invoked due process, ignoring the long-held conservative doctrine of state’s rights.

Dangers to Free Speech

Two Justices have written that they wish to curtail freedom of speech. On July 2, Justices Clarence Thomas and Neil Gorsuch wrote separate dissents from the denial of certiorari in Berisha v Lawson that, if adopted, would give greater protection to public officials who bring defamation actions against citizens who criticize them.

Gorsuch quotes old law from before the 1964 landmark decision inTimes v. Sullivan as attractive and suggests we should go back to it. Thomas also suggests doing away with Sullivan.

Protecting Police Officers

With people in the streets nationwide demanding reform of qualified immunity for police officers, the court on July 2 denied certiorari that presented on that very issue. Students at the University of Arkansas were kicked off an open area by campus police. The U.S. Court of Appeals for the Eighth Circuit held the students had a good case but denied them recovery because the officers had qualified immunity. In a statement, Thomas repeated his view that qualified immunity is “on shaky ground.”

Dangers of This Year’s Shadow Decisions

The principle of good judging is that a judge at any level must carefully weigh the effects of a ruling on the people affected by it.

The danger of this court stems not just from being overtly political, which some justices are, but from a philosophy of law that uses hyper technicalities to reach certain ideological results, anti-procedural at times, and anti-rights oriented.

David D. Cole, the national legal director of the American Civil Liberties Union, recently pointed out how narrow many of the court’s decisions were this term. That was not the case during the Supreme Court’s so-called summer recess. We may be entering a period of increased scrutiny of cases the Supreme Court is not taking and what peremptory orders they are entering.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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James Brosnahan is senior of counsel with Morrison & Foerster LLP in San Francisco and practiced trial and appellate law for 60 years and is a member of the California Trial Lawyer’s Hall of Fame. He’s argued two cases before the Supreme Court and lectures in California on recent Supreme Court cases.

The views expressed by the contributor are their own and not the views of Morrison & Foerster LLP or its clients.