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Fixes Raised to Shine Light on Supreme Court’s ‘Shadow Docket’

Feb. 18, 2021, 11:13 PM

The Supreme Court’s so-called shadow docket—where justices settle disputes without explanation—is in the congressional spotlight, and a civil rights lawyer has proposed a “narrow fix” to promote public confidence.

Amir Ali told a House Judiciary subcommittee on Thursday that Congress could provide guidance to the Supreme Court about the standard to apply when overruling execution stays imposed by lower courts.

Ali, director of the MacArthur Justice Center’s Washington office, said Congress has already laid out a deferential standard for courts to apply when overturning judgments in the Anti-Terrorism and Effective Death Penalty Act, or AEDPA, and that a similar standard could apply to the justices when overturning stays.

The shadow docket issue has arisen in the capital punishment context recently, including during the Trump administration’s unprecedented run of federal executions. Those executions were made possible in part by the high court majority condoning them in late-night, unexplained orders.

The term shadow docket was popularized by University of Chicago law professor William Baude and has come to refer to an issue that has arisen across myriad areas of law including election and Covid-related litigation.

“We are not here to doubt the justices’ hard work,” said Rep. Hank Johnson (D-Ga.), chair of the subcommittee, introducing the virtual hearing. “But in order for justice to be fair, justice must be open,” he said.

Another hearing witness, professor Stephen Vladeck, said the court is acting far more aggressively in these cases than in the past.

Congress isn’t “entirely powerless to address the rise of the shadow docket,” Vladeck, a University of Texas law professor, said in his written testimony.

Among his list of fixes is encouraging the justices “to provide at least a brief explanation of any order with respect to a stay or injunction that alters the status quo vis-à-vis the lower courts.”

Michael Morley, assistant professor at Florida State University College of Law, discussed nationwide injunctions, a subject that attracted attention from Republican members during the hearing. If certain injunctions are curtailed, “at least one of the contributing factors to the recent growth of the shadow docket will be removed,” Morley said in his written testimony.

Though the issue stretches across several legal areas, critics of high court actions that don’t follow the normal path of oral arguments and full opinions have focused on capital punishment in particular, as reflected in Ali’s testimony.

“When it comes to ending someone’s life, there is no do-over,” Ali said.

He said that the justices have given different treatment to Muslim, Buddhist, and Christian inmates seeking spiritual advisers during executions, and that the unexplained disparity is “dangerous.”

Lower court requests for additional time to consider the lawfulness of executions should be afforded deference, Ali, who also teaches at Harvard Law School, said in his written testimony. Overturning lower court stays should require explanation, he said.

The issue came into focus again last week, in a case from Alabama of the Christian inmate to whom Ali referred. A majority of the court sided with death-row inmate Willie Smith, rejecting the government’s application to lift an injunction against executing him without his pastor in the chamber. Four justices noted their agreement with Smith and three dissented, but two justices didn’t indicate either way.

A “mystery justice” joined the four in Smith’s case, District of Columbia Solicitor General Loren AliKhan said during the hearing.

That same night, the justices lifted a lower court stay for Smith on a separate issue without explanation.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at