What is the “shadow docket?”

The Supreme Court is the last stop on the long, windy road of American law. It’s ruled on cases large and small; from landmark cases like Brown v. Board of Education and Roe v. Wade to a case that questioned if tomatoes were a fruit or vegetable (the 1890s were wild).

Most cases you’ve heard of, including Brown and Roe, have been decided on something called the “merits docket.” When a case makes it through the lower courts to the merits docket, standard procedure ensues. In a process that often takes months, Justices hear arguments on both sides, debate amongst themselves, and eventually write lengthy opinions detailing their reasoning (or, in split cases, two opinions: a majority and a dissent).

But there’s another way cases are heard: the “emergency docket.” Historically, the emergency docket has been used for administrative issues, like due dates for briefs, or for issues that require a timely response, like capital punishment and COVID-19. Emergency docket cases are fast tracked, and treated with a truncated (and often unsigned) ruling.

In 2015, legal scholar William Baude coined the term “the shadow docket” to describe the mysterious machinations of the emergency docket. Recently, so-called shadow docket cases have been on the rise; both numerically and with regards to complex issues that were previously decided on the merits docket.

Erinn Martin, Director of Nominations & Cross-Cutting Policies at the National Women’s Law Center, says that although the rise of the shadow docket is concerning, it’s not a hopeless cause. In terms of what the average American can do about it, she says, “We can share news reporting on the issue to ensure that people are enlightened about it. We can reach out to our elected officials to let them know about our concerns, and we can urge Congress and the White House to fix it.” Visit The National Women’s Law Center to learn more.