The Lawfare Podcast: Lawfare Archive – The Shadow Docket

Episode Details:

• Title: Lawfare Archive: The Shadow Docket
• Host: Jack Goldsmith, The Lawfare Institute
• Guest: Jonathan Fields, Author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic
• Release Date: April 13, 2025

1. Introduction to the Shadow Docket

The episode delves into the concept of the "Shadow Docket," a term coined to describe the Supreme Court's non-merits decisions that occur outside the formal, highly publicized merits docket. These decisions include emergency orders, summary reversals, and other procedural rulings that significantly impact national policy without the extensive deliberation typical of merit cases.

Notable Quote:

“The Shadow Docket consists of applications asking the court to block a lower court order while the appeals process plays out.”
— Jonathan Fields [01:28]

2. Historical Origins of the Shadow Docket

Jonathan Fields traces the origins of the Shadow Docket back to 1973, highlighting a pivotal case involving the bombing of Cambodia. In this instance, Justice William O. Douglas exercised emergency powers to grant a nationwide injunction, temporarily halting the bombing. This case exemplifies how individual justices could influence significant national policies outside the formal docket.

Notable Quote:

“The only example in American history of a federal injunction against an ongoing military operation.”
— Jonathan Fields [09:31]

3. Expansion and Prominence in Recent Years

Fields discusses the growth of the Shadow Docket, especially from the 1980s onward, correlating it with the resurgence of the death penalty and the ensuing flood of emergency applications. By the early 1980s, the Supreme Court began handling a surge of these cases, leading to a more permanent shift in how emergency applications were processed.

Notable Quote:

“The full court could not act on Holtzman's application, and rather all she could do was seek out a second circuit justice.”
— Jonathan Fields [12:29]

4. The Role of Certiorari and Docket Control

A significant focus is placed on the Supreme Court's transformation from mandatory to discretionary jurisdiction through the expansion of certiorari powers, particularly with the Judiciary Act of 1925. This shift granted the Court plenary control over its docket, allowing justices to selectively choose which cases and issues to address, thereby amplifying the Court's influence over national legal principles.

Notable Quote:

“The Court can say accurately and honestly, this is how we've always done emergency applications going back to the 1980s.”
— Jonathan Fields [20:16]

5. Criticisms and Challenges of the Shadow Docket

Fields articulates several criticisms of the Shadow Docket:

• Lack of Transparency: Decisions are often rendered without detailed explanations, making it difficult to assess the Court’s reasoning or consistency.
• Strategic Denials of Certiorari: Denials can have significant impacts without establishing precedents, as seen in the legalization of same-sex marriage where strategic denials allowed lower court injunctions to stand.
• Inconsistent Applications: The Court's interventions appear inconsistent, favoring certain administrations or policies over others without clear rationale.

Notable Quote:

“A cert denial can have a massive impact on the ground.”
— Jonathan Fields [34:29]

6. Impact on Recent Supreme Court Decisions

The episode highlights how the Shadow Docket has influenced recent high-profile cases, including immigration policies like the Migrant Protection Protocols (MPP) and COVID-19 restrictions. Fields points out that these emergency applications often align with partisan lines, undermining the perceived neutrality and principled decision-making of the Court.

Notable Quote:

“The pattern looks bad when what should have been predictors for neutral application of principles across cases with different partisan valences turn out not to be accurate.”
— Jonathan Fields [61:49]

7. Reforms and Future Directions

While acknowledging the inherent challenges in reforming the Shadow Docket, Fields proposes that increased public awareness and discourse are essential first steps. He suggests that mechanisms to expedite merit reviews and reduce reliance on emergency applications could alleviate some of the Court's docket pressures. Additionally, he emphasizes the need for greater transparency in the Court's emergency rulings to enhance accountability.

Notable Quote:

“The big proposal is that we just need to talk about this.”
— Jonathan Fields [69:27]

8. Conclusion and Key Takeaways

The episode underscores the critical importance of understanding the Shadow Docket as an integral part of the Supreme Court's functioning. Fields argues that neglecting this aspect provides an incomplete and often misleading portrayal of the Court's role in shaping national policy. By shedding light on the Shadow Docket, the discussion calls for a more holistic approach to evaluating the Court's influence and decision-making processes.

Notable Quote:

“The Shadow Docket is in many ways as important if not more so than the merits docket.”
— Jonathan Fields [72:23]

Final Thoughts: Jonathan Fields' insights reveal a facet of the Supreme Court's operations that operates largely beneath the public radar yet wields substantial power over national policies. The Shadow Docket presents both opportunities for swift judicial intervention and challenges related to transparency and consistency. As the Court continues to evolve, ongoing analysis and dialogue are essential to ensure its decisions uphold the principles of justice and republican governance.