Justices Forced to Explain Shadow Docket Rulings Under New Bill

Senate Democrats are pushing new legislation to make US Supreme Court decisions on emergency requests that come to the court through its so-called shadow docket more transparent.

Sen. Richard Blumenthal (D-Conn.) planned to introduce a bill on Wednesday supported by Senate Majority Leader Chuck Schumer (D-N.Y.) and 10 other colleagues that would force the court to provide a written explanation for shadow docket decisions and disclose how each justice voted.

The bill doesn’t have a Republican co-sponsor and is unlikely to pass the Republican-controlled House, but its introduction marks Democrat’s latest attempt to overhaul how the court operates. Senate Democrats tried unsuccessfully last year to set term limits on the justices following reports of ethics issues and misconduct.

Unlike cases on the court’s merits docket, emergency requests for orders that allow a law or regulation to be enforced or blocked while it’s being challenged in a lower court aren’t fully briefed or argued.

“Americans deserve a public explanation and vote count for highly consequential decisions that the Supreme Court now issues increasingly on its shadow docket,” Blumenthal said in a statement.

In testimony before the Senate Judiciary Committee in 2021, University of Texas School of Law professor Stephen Vladeck said shadow docket rulings are generally handed down without any explanation from a majority of the justices as to their reasoning. The shadow docket rulings sometimes come late at night or very early in the morning and the unpredictable timing limits public access, and they resolve constitutional questions prematurely, Vladeck said.

Justices Brett Kavanaugh and Clarence Thomasraised concerns in separate appearances earlier this month about the court’s growing emergency docket and how it forces the justices to make snap decisions, and limits their ability to hear more merits cases. Kavanaugh said the court is on pace to release 60 opinions this term and that’s he’d like to see that number to 75.

In addition to written rulings from the court, Blumenthal’s Shadow Docket Sunlight Act would also require the Federal Judicial Center to provide Congress with an annual report on the court’s compliance with the law.

The legislation, “would help raise and restore the stature and credibility of the Court by imposing more transparency and public understanding,” he said.