U.S. Supreme Court Shadow Docket Decisions Stump Lawyers

Traditionally, the process of getting an opinion from the US Supreme Court takes months and those rulings are often narrowly tailored. Emergency orders, especially during the court’s summer break, revolve around specific issues, like individual death penalty cases, Gary Fields reported for the Associated Press (AP).

Photo Insert: The US Supreme Court

But that pattern has changed in recent years with decisions coming outside the court’s normal procedures. That has been especially true in the past two weeks.

Since Aug. 24, that truncated process known as the shadow docket has moved at astronomical speed, producing decisions related to immigration, COVID-19 and evictions, and, most recently, abortion.

Those three decisions, with the conservative wing of the court in the majority, have the potential to affect millions of people, in a fraction of the time and outside the normal scrutiny, signed opinions can bring.

“My memory is, typically, if the Supreme Court was acting in July and August, it was really that quintessential emergency appeal, dealing with something like a death penalty situation. It wasn’t like: What is immigration law going to be in our country? It wasn’t: Will tenants have certain rights? It wasn’t the big substantive questions,” said Jessica Levinson, a professor at Loyola Law School.

Participants petition the court to hear cases. If accepted, there are oral arguments before the justices, although during the coronavirus era that has meant via telephone. Before this happens, a case usually has gone through a full review and appeal in lower courts.

Those deliberations are part of the material the justices reference. Amicus briefs are submitted by parties interested in the case. Once the arguments are heard the judges meet in conference, discuss the cases and take preliminary votes. Opinions are assigned to be written and draft opinions are exchanged and often amended and changed.

The overall process is deliberative and one where the justices justify their conclusions in somewhat lengthy written legal opinions. The process between oral argument and issued opinion takes months.

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