Document Type

Article

Publication Date

2022

Abstract

The “shadow docket” is the term recently given to a long-standing practice of the United States Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently the practice has received unusual attention inside and outside the legal community, because of its seemingly greater use by the Court in high-profile cases, with the emergency orders sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems of the shadow docket. One suggestion is to require suits against federal statutes and policies to be litigated before a specially convened three-judge district court, perhaps in the District of Columbia, with a direct appeal to the Court. Supporters argue that this process would result in more consistent decision making by the Court and lower courts.

This Essay critically examines the suggested reform. As its supporters acknowledge, the reform would largely replicate the procedure Congress established from 1937 to 1976 for challenges to the constitutionality of federal statutes. Congress abolished the special procedure in 1976, given opposition from the federal judiciary and others, in part due to it being perceived as unnecessary, and burdening the Court with mandatory appeals. The Essay first evaluates the recent suggestion considering the prior experience, an evaluation that includes an empirical analysis of Supreme Court decisions under the earlier process. It then considers proposals to establish exclusive jurisdiction in the federal courts in the District of Columbia, which would reduce forum shopping but deprive the Court of the benefits of percolation of multiple suits. The Essay concludes that the suggested reform could ameliorate some of the reforms of the shadow docket, but should be undertaken with an appreciation of the decidedly mixed past experience with similar institutional arrangements.

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