Missing From Supreme Court's Election Cases: Reasons for Its Rulings "the shadow docket"
In a series of terse, unsigned orders, the court has been deciding many election disputes on its “shadow docket” without a murmur of explanation.
By Adam Liptak
Oct. 26, 2020
WASHINGTON — At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida.
Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning.
“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”
The orders were responses to emergency applications, and they were issued quickly, without full briefing or oral arguments (hence the “shadow docket”).
Compare the shadow docket with the court’s regular docket, the one with real briefs, arguments and elaborate signed opinions. On that docket — the “merits docket” — the court ordinarily agrees to hear about 1 percent of the petitions asking it to intercede. In its last term, it decided just 53 merits cases.
If the court is going to treat emergency applications with something like equal care, it might consider explaining what it is doing. Explaining, Judge Frank H. Easterbrook wrote in 2000, is what distinguishes judges from politicians.
“The political branches of government claim legitimacy by election, judges by reason,” he wrote. “Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.”
Terse rulings on emergency applications are not new. But “the shadow docket has truly exploded in the last few years,” Stephen I. Vladeck, a law professor at the University of Texas, wrote on Scotusblog last week.
The Trump administration has been a major contributor to the trend, Professor Vladeck wrote, having filed 36 emergency applications in its first three and a half years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.
More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges.
Is it possible to trace some themes in the court’s election orders? Sure.
https://www.nytimes.com/2020/10/26/us/supreme-court-election-cases.html?smid=tw-share
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