Document Type
Book Review
Publication Date
4-2024
Abstract
This Review has two goals. The book, by design, largely steers clear of concrete reform proposals; its object is to trace the ways that the Court’s practices around emergency applications shifted over the Trump years and to urge that these developments warrant critical attention (pp. 24–25). My first goal, then, is to propose some reforms. These proposals orbit around a central contention: Any critique of the shadow docket and any proposed solution must depend, explicitly or implicitly, on a theory of the Court — its role in the constitutional order and how it can best serve that role. As a descriptive matter, the Court’s present role was articulated by Taft and realized by the Judges’ Bill; it sits primarily to declare broadly important legal norms. The emergency docket should be understood as an adjunct to that primary function, not as an alternative route to fulfill it.
My second goal is to suggest that, in some respects, Vladeck’s critique of the shadow docket does not go far enough. One of the challenges in assessing the “shadow docket” is that it is not a single thing, but an amalgam of varied practices not susceptible to a uniform prescription. Vladeck’s focus is the emergency docket, and his claim, at bottom, is that the merits docket — with its signed opinions, reasoned orders, oral argument, and so on — is the paradigm of regularity to which the Court’s emergency docket should aspire. At times, though, Vladeck gestures toward a more radical thesis: Since the Judges’ Bill, it is the shadow docket — in particular, certiorari — that has really defined the Court’s institutional identity, not the merits docket (p. 276). Everything the Court does on the merits docket happens only because of a prior shadow docket decision. And when it makes those shadow decisions, the Court has virtually unbounded discretion. The merits docket, in other words, is a small, manicured island on a vast sea of discretion. I close by suggesting that public law theory often fails to confront this stubborn institutional fact. If that is right, the debate about the shadow docket will and should long outlive the present controversy over standards for emergency relief.
Disciplines
Law | Public Law and Legal Theory | Supreme Court of the United States
Recommended Citation
Thomas P. Schmidt,
Orders Without Law,
122
Mich. L. Rev.
1003
(2024).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4524
Comments
The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic by Stephen Vladeck, New York: Basic Books, 2023, pp. xv, 334, $30.