A geometry of shadow dockets
Criticisms of the Shadow Docket are valid but the critics are mostly insincere
This week, the Supreme Court issued a stay in Garland v. Vanderstok, a case pending before the Fifth Circuit. Vanderstok takes aim at ATF regulations adopted last year pursuant to the Gun Control Act 1968. In the ATF’s sights: The rise of “ghost guns,” assembled at home from parts kits. See Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24652 (Apr. 26, 2022). Six weeks ago, a district court struck down the rule. The Fifth Circuit expedited the appeal (argument is scheduled for September) and issued a partial stay. The government, not satisfied, sought and has now obtained a full stay from the Supreme Court while appeals are conducted.
We won’t dwell on this but I want to say it up front: My personal opinion is, everyone here is misbehaving, and they’re doing it to compensate for other people's misbehavior, and we should have been better off had everyone just done what was proper to them. The Fifth Circuit misbehaved by declining the stay; the government misbehaved by running to the Supreme Court; and the Supreme Court misbehaved by getting involved. It’s unseemly, extraordinary, and should be passing rare, that a superior court issues a stay that a court below has refused while the case remains pending in the court below.1
But that’s not what I'm here to talk about today. Rather, I must say, the silence as to Vanderstok from the critics of what has been called “the shadow docket” is deafening. That term’s credited to Will Baude, see Baude, Foreword: The Supreme Court's Shadow Docket, » 9 NYU J. of Law & Liberty 1 (2015), though it's made its way into the vernacular. Ask people to define “the shadow docket” and they'll tell you that it is a broad category of actions by the Supreme Court outside of the “plenary” or “merits” docket.2 Summary reversals? Shadow docket. Emergency motions? Shadow docket. Cert docket and GVR? Maybe shadow docket. Orders list? Sometimes. (What about DIGs, you might ask? Those cases are normally on the plenary docket and they typically receive at least briefing if not also argument, but they are typically disposed without written opinion, so they're at least shadow-docket-adjacent. By the way, lay readers puzzled by the jargon in this paragraph may find this helpful.)
You may infer from the way that that list tailed off into sarcasm that 1) I'm not convinced by the critics and 2) the definition of the shadow docket is hazy and malleable. How convenient. Like Baude, I think there are legitimate and “nagging” concerns about the Shadow Docket, see Baude, supra, at 25, but I think most of the criticisms (including, alas, from the bench) are overblown and reflect an attempt to tack up a trendy term so it can haul disagreement with what is being done.
I want to alight briefly on a 2020 Slate article written by Steve Vladeck as an exemplar. First because I respect and enjoy Vladeck, second because he has literally written a book about it, and third because it provides both specific examples and a digestibly-sized critique written when Baude’s concept was leaking into the mainstream. Vladek cites seven examples where the court used the "shadow docket" in displeasing and significant ways, and it’s worth looking at them in slightly more depth than he offered. Briskly blowing past the bit where Vladeck effectively gives the game away (by allowing that what has driven the increased prominence of decisions on the Shadow Docket is less a change in the court’s praxis as to cases on that docket but rather an increase in fillings to that docket, i.e. by litigants, i.e. beyond the court’s control), his examples are:
1. Barr v. Purkey. In response to their imminent executions, prisoners filed suit to challenge their executions. The district court entered preliminary injunctions. The government asked the Supreme Court for a stay or vacatur.3 The Court declined.
2. Calvary Chapel Dayton Valley v. Sisolak. In response to Nevada’s adoption of COVID restrictions that allowed gatherings of hundreds at commercial enterprises but no gatherings of more than fifty at religious assemblies, churches filed suit to force equal treatment of commercial and religious gatherings. The district court declined to issue an injunction, so did the Ninth Circuit, and the plaintiffs asked the Supreme Court for an injunction while appeal was pending. The Court declined.
3. Little v. Reclaim Idaho. In response to Idaho’s enforcement (notwithstanding COVID) of longstanding requirements for proponents of ballot initiatives to gather signatures, proponents filed suit to force Idaho to cut them a break. The district court issued a preliminary injunction, the Ninth Circuit declined to stay the injunction pending appeal, and Idaho asked the Supreme Court for a stay. The Court granted a stay.
4. Trump v. Sierra Club. In response to the government’s diversion of defense funds to construction of a border wall, users of lands “renowned for their beauty and archaeological, historic, and biological value,” Brief in opposition, at 8, filed suit to prevent those lands being devastated by construction. The district court issued a permanent injunction, the Ninth Circuit declined to stay the injunction pending appeal, and the government asked the Supreme Court for a stay. The Court granted a stay.
5. Department of Justice v. House Committee on the Judiciary. In response to an impeachment proceeding, a committee of the U.S. House of Representatives sought to compel release of grand jury materials. The district court authorized the disclosure, the D.C. Circuit affirmed, and the government asked the Supreme Court for a stay. The Court granted a stay.4
6. Raysor v. DeSantis. In response to an approaching election, potential voters filed suit challenging a requirement that re-enfranchised felons pay “all fines, fees, and restitution imposed as part of their sentence” before resuming voting. The district court issued a permanent injunction, the Eleventh Circuit stayed the injunction while the appeal was pending, and the voters asked the Supreme Court to vacate that stay. The Court declined.
7. Barnes v. Ahlman. In response to the COVID outbreak, prisoners filed suit to force their jailers to implement safety measures. The district court issued a preliminary injunction, the Ninth Circuit declined to stay the injunction pending appeal, and the jailers asked the Supreme Court for a stay. The Court granted a stay.
Surveying these examples (which, remember, Vladek chose, not me) you will note the chaos of procedural postures. In some the district court acted, in others not; in some the court of appeals acted, in others not; but never mind what happened below, never mind which side asked the Court for what, and never mind that the Court itself initiated none of this, that these were all cases brought to the court by the losers below, of all ideological stripes, never mind any of that, The Court Was Wrong. Vladek thinks the court erred in declining a stay in Purkey and also in granting one in Little, and it erred in declining a stay athwart the Court of Appeals in Raysor but also in granting one athwart the Court of Appeals in Barnes. And it erred, I guess, by not granting an injunction in Calvary Chapel, athwart both the district court and the court of appeals?
I do not mean to deny that these things have subtle crosscurrents. The purpose of a temporary injunction is to maintain the status quo ante while litigation is ongoing, and thus, in Purkey, the status quo ante’s maintained by keeping the prisoners alive; in Sierra Club, by halting construction; and in Department of Justice, by not handing over the information. But then there are cases like Calvary Chapel, Little, Barnes, where it’s not obvious that there is a status quo ante, let alone that it can be preserved. And as Raysor and Little illustrate, judges can’t stop the clock.
It gets even messier in a tiered system where tiers become progressively more remote from the situation on the ground and (as Purkey illustrates) litigation can go through many phases. The paragraph above addresses what the district courts should be thinking when asked for a temporary injunction. But cf. Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). Seen from the Supreme Court’s perspective, In Purkey and Sierra Club, the status quo ante would be maintained by keeping the prisoners alive and halting construction, so preserving the status quo meant declining to stay or vacate the district court's injunction. But in Department of Justice, the status quo ante would be maintained by not handing over the information, so preserving the status quo meant granting a stay. There are many permutations, and I don’t mean to imply the critics are wrong just because they can’t offer a simple, all-encompassing rule for what is by any fair assessment a menagerie.
Vladek’s list does highlight the critics' strongest (though seldom loudest) point. When the Court disposes of cases without writing opinions, it can be hard to ascertain what is being done and why. It’s not want of reasoning but want of a summary of the procedural history that I would argue is the worst defect. In some of those cases, concurrences or dissents by the justices offered helpful guidance, but in most, I had to dig through briefs and opinions below to understand the context. If Shadow Docket critics demanded that the Court (even the clerk, in a brief syllabus) set out the procedural history in cases decided on the emergency motions docket, I would readily agree.
But Vladek’s list also illustrates what I find most striking about the critics: They lack a coherent narrative of what they don’t want, let alone what they want instead. Despite assigning it a spooooky scaaary name, they don’t want the court to decline all emergency motions; of course they don’t. The critics want it available when the courts below displease them, as Vanderstok exemplifies.
Nor would they be mollified if a larger percentage of the Shadow Docket received more briefing or even oral argument. We know that because cynicism about what difference these make is an old game, dull, and unconvincing. Cf. Rehnquist, Remarks On The Process Of Judging, 49 Wash. & Lee L. Rev. 263, 269 (1992).
Nor if the court gave brief explanation. We know that because the court did so in Whole Women’s Health v. Jackson. And the critics can’t, surely, want the court to write a full explanation of every order; the vast majority of the court’s cases are cert petitions that the court orders dismissed, often dozens at a time, with no explanation. And besides: The fully-developed opinions on the plenary docket still aren’t good enough for the critics, who routinely dismiss opinions the outcomes of which they (the critics) disagree as insincere, makeweight, or inadequate. See, well, all mainstream media reporting, passim.
And nor again, I suspect, would the critics be any happier if review was less “scanty” (Justice Kagan’s complaint in Merrill v. Milligan) and less brisk (Justice Kagan’s complaint in Whole Women’s Health v. Jackson). If the court had spent more time reviewing the record and more time thinking and had come to the same conclusion, I just don’t believe that Justice Kagan would any less think the outcome was bad because it “greenlight[ed] the operation of Texas’s patently unconstitutional law….”
All of which leaves me somewhere in the middle, acknowledging legitimate criticisms of how the court uses the Shadow Docket but skeptical as to the critics and their claims. Which brings us back to Vanderstok, which came to the Supreme Court as an “emergency” appeal, placing it squarely in the realm of the “Shadow Docket.” So why is it, I pressed, that Shadow Docket critics are silent?
One answer I got was that in Vanderstok, unlike, say, “the muslim ban case” (Trump v. Hawaii), the justices were transparent as to how they voted. That ain’t it. The Trump stay said how the justices voted to exactly the same extent or not as does the Vanderstok stay. So if vote-disclosure is the concern (and that is a valid concern, cf. Baude, at 24), I fail to see how this is okay but that wasn’t. Maybe Trump was simply a poor choice of example on my interlocutor’s part, because it’s true that most shadow docket cases do not say how the justices voted. Accord Baude, at 18–20. But any Justice can dissent, or even simply have their dissent noted, and if the matter is not sufficiently important to them, it’s unclear why we should be exercised to think otherwise? Besides, Trump is in many ways a good analog because the procedural posture was similar. There as here, litigation started when the government changed policy. There as here, the application for stay came to the Supreme Court after the court of appeals entered a stay short of what the movants requested, and there as here, the government wanted a stay from the Supreme Court while it continued its appeal in the court of appeals. How would they be differentiated in purely procedural terms?5
Another answer was that use of the Shadow Docket is fine where there is an unavoidable need for immediate action. I understand that in an execution case like Purkey or an election case like Little, where, as I mentioned earlier, there are clocks ticking that courts can’t stop. But if that’s the criterion, I don’t understand how it indemnifies in Vanderstok. The regulation was promulgated in April 2022, the district court entered judgment on July 5, 2023, and the Supreme Court acted on August 8, 2023. To me, “immediate” means something like a stay of an execution scheduled for midnight tonight, something where irreparable harm will ensue absent a stay, not something that is being litigated at a comfortable pace in the ordinary course of events as this has been.
The best responses that I received argued that unexplained, summary action in cases on the Shadow Docket is okay when it maintains the status quo ante while litigation proceeds. At face value, that’s plausible. But there’s a sleight of hand going on here. It takes the filing of litigation as the reference-point for what constitutes “ante,” ignoring that litigation is most often filed because something changed. Why should we think of “the status quo ante” in Vanderstok as “the day before litigation was filed” rather than “the day before the final rule was published”? Suppose, for example, instead of a Democratic administration tightening gun regulations, what lay beneath this case was a Republican administration tightening abortifacient regulations. Suppose the plaintiff was NARAL and, just as here, the district court enjoined the new rule. The government asks the Court of Appeals for a stay pending appeal, gets only a partial stay, and so comes to the Supreme Court wanting a stay pending appeal. The Court, over four dissenting justices, issues the stay (allowing the new, abortifacient-restricting regulation to go into effect) with a similar one-paragraph non-substantive order. Is that okay? After all, it simply restores the status quo ante before NARAL filed suit, ignoring the rulemaking that prompted the suit.
It’s hard to avoid concluding that what really drives the critics are not Baude’s academic concerns about procedure, but rather substance and tribal affiliation. The liberty interests and plaintiffs in Vanderstok do not energize or even concern the critics, while the liberty interests and plaintiffs in, say, Trump, do. That’s why Shadow Docket critics have nothing to say about Vanderstok. Those critics are overwhelmingly members of a tribe that likes immigration and free movement but which seldom avails itself of the Second Amendment, and in this case, the use of the Shadow Docket yielded their preferred outcome. The straightforward (if cynical) explanation is that the critics ignore action on the Shadow Docket that “they don’t “mind or … care about.” Baude, at 54. And we should keep that in mind when we evaluate their complaints.
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There’s a graphic doing the rounds quoting (or attributing the quote to) comedienne Michelle Wolf. “You know,” it has Wolf say, “in High School, if you didn't believe in Science or History, it was just called failing.” Hurr durr, we are supposed to smirk at the “anti-science” people; “what a bunch of atavistic dummies.”
But there’s a big difference between “I don’t believe in science or history” and “I don’t believe the science or history that you are teaching me.” For example, the “holographic principle,” developed by Susskind et al, strikes me as an imaginative but desperate attempt to rescue information conservation from Stephen Hawking’s conclusive demonstration that black holes radiate. I’m sorry, Lenny, but I don’t believe the science you’re teaching me.
History is an even clearer case. It hasn’t usually been the atavistic dummies who have complained about what’s taught in high school history classes, but rather people like Wolf who have pointed out that it can be misleading, incomplete, or infected by propaganda. In a European context, one might point to the myth of the Clean Wehrmacht, which I distinctly recall as an undertone of our World War 2 classes. In America—oh brother. As I write this, there’s controversy about Florida curricularizing “the benefits of slavery.” (Jesus Christ, I can’t believe I had to type that in 2023.) I don’t know what Wolf’s history classes said about the U.S. Civil War and slavery, but I suspect that if she had gone to school in the south and been taught the south’s various self-absolving myths, Wolf would have said, I’m sorry, Teach, but I don’t believe the history you’re teaching me.
To this one might object that science teachers (especially at the high school level) have neither time nor the inclination to “push an agenda.” They “simply” teach “the scientific facts as we understand them now.” But even if this is true (and I think we all have our doubts on that score) it doesn’t rescue Wolf. Stipulating that all science teachers set out to teach “the scientific facts as we understand them now,” that’s still a broad vista. For one thing, scientific knowledge is not the only thing that evolves. Scientific definition does, too. When I was in school, it was a “fact” that there were nine planets, of which Pluto was the farthest from us. We had to unlearn that when that neat picture was first unsettled by discovery of many exoplanets, and then dynamited by discovery of several local things-wot-could-be-planets like Makemake and especially Eris. This forced a reconsideration of how we define “planet,” leading to a definition by which there were only eight local planets. And, yes, you can pettifog whether “nine planets” should ever have been taught as a “fact,” you can argue about whether that label was apposite, but that is how it was taught.
For another thing, teachers are humans, mostly, and historically, humans have proven too quick to promote conjectures to theorems and theorems to “facts” and when those conjectures are disproven, too slow to dismiss what they long ago learned as “facts.” When I was in school, it was a “fact” that photons are massless. That is not a fact; it is a conjecture. Barely. It’s an assumption. We can draw a perimeter around the facts. (Any photonic mass must be tiny because we cannot measure any photonic mass and we know what observable effects would follow if it's above a certain threshold, so we treat it as, and assume it is, zero.) But we can’t (yet) prove it as a fact. (Tiny isn’t necessarily zero.) Similarly, people just a little older than me learned in school that atoms are the fundamental building blocks of matter, and there’s a movie in theaters now if you’re unsure how that one turned out.
And all that to one side, there is another factor going unconsidered. Your average high school physics teacher is not there to engage in rigorous scientific discussion; she’s just trying to get through the week without becoming a full-blown alcoholic. To teach as far above the minimum as she thinks these idiots can absorb. And your average high school student is not there to learn, bright of eye and bushy of tail; they’re bored, apathetic, and trying to scrape by learning as close below the minimum as they think they can get away with. Take a journey back with me. It’s a warm not-summer day in ancient Britain (specifically the early 1990s) and we’re in my high school physics classroom. Mr Carew-Jones has just drawn a circle on the blackboard. “This,” he says, tapping the chalk (yes, chalk) against the board, “is a black hole. Things go in, nothing comes out. Any questions?” (Mr Carew-Jones, God bless him, did not ask us if there were any questions—LOL.) Had I stuck my hand in the air and said “but sir, but sir, I think you’ll find that Dr Hawking at Cambridge has shown that while technically nothing comes out, virtual particles forming on the horizon lead to a gradual radiation of mass that is in all practical senses the same as the black hole itself radiating,” exactly how do you expect he would react? It would have been, “Dodd, sit down and shut up.” And rightly so.
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Notes & queries.
Today’s title image was shot by Annatsach and was released under a CC BY-SA license.
Cornucopia.
Volvo is departing the UK market. I have many fond memories tooling around in the indestructible Swedish boxes, and at least one occasion where their indestructibility saved our bacon.
I love this mad Thunderbirds idea of a rescue plane.
31 Million people sought tickets for Taylor’s Eras Tour's Toronto dates.
With Oppenheimer still riding high in theaters, everyone who’s ever written anything decrying the bombing of Hiroshima and Nagasaki is crawling out of the woodwork in search of a spotlight. There is little to their arguments because there are few material differences between the allies’ carpet-bombing of German cities, see Max Hastings, Bomber Command (1979), the firebombing of Tokyo, and the nuking of two cities. The differences are technical, and the most significant material difference, the lingering effect of radiation, is seldom addressed by these critics. One can object to all, or to none, but not to one of these campaigns.
Packwood v. Senate Select Committee on Ethics, 510 U. S. 1319, 1320 (1994) (Rehnquist, C.J., in chambers) (“Because this matter is pending before the Court of Appeals and because that court denied applicant's motion for a stay, he has an especially heavy burden” in persuading the Supreme Court to grant it); see Fargo Women’s Health Organization v. Schafer, 507 U.S. 1013, 1014 (1993) (O’Connor, J., concurring); Heckler v. Redbud Hospital District, 473 U. S. 1308, 1312 (1985) (Rehnquist, J., in chambers); accord Nken v. Holder, 556 U.S. 418, 427 (2009); Dugger v. Johnson, 485 U.S. 945 (1988) (O'Connor, J., dissenting).
I.e. the seventy or so cases annually in which the court grants cert, receives briefing, hears argument, and disposes of by written opinion. I think “plenary” docket makes more sense in this context since a summary reversal, for example, which Baude identified as a Shadow Docket category from the get-go, may well be a decision on the merits.
Patently in bad faith, mind you. The government was not proposing to voluntarily suspend the executions, it was proposing to moot the case by executing the men. But the Supreme Court does not at this time entertain a "Motion To Let Us Kill 'Im And Move On."
Exactly what Vladek objects to here is unclear. He links to the July 2, 2020 order list which suggests his beef is with the cert grant, but that makes little sense. More likely is that he objects to the court's earlier stay, and I treat that as his concern.
Or in terms of outcome, for that matter? There as here, there was no explanation. One wholly procedural paragraph doesn’t count as an explanation, and if it does here, again why didn't it in Trump? (Which, again, was not my chosen example.)