Alito bristles over criticism of Supreme Court's 'shadow docket'

Justice Samuel AlitoSamuel AlitoHow religious liberty was distorted in the age of COVID-19 Supreme Court weighs religious accommodations during executions Supreme Court seems wary of NY gun limits MORE on Thursday bristled over recent criticism of the Supreme Court’s handling of emergency matters under its so-called “shadow docket,” a phrase the justice said plays into a warped portrayal of the court as a “dangerous cabal.” 

The staunchly conservative 71-year-old justice said he welcomes substantive debate over the court’s rulings, but takes exception to what he characterized as a distorted depiction commonly found in media reports on the court’s emergency activity.

“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” Alito told students during a speech at Notre Dame Law School.

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“And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution,” he said.

The phrase “shadow docket,” originally coined by University of Chicago Law School professor William Baude, has come to refer to the court’s use of a truncated process to issue rulings on an emergency basis. The procedure departs from the court’s regular operations by forgoing a comprehensive set of paper briefs and oral arguments in favor of ruling quickly on an emergency application.

Although Alito's speech Thursday gave the impression that the principal critics of the court's shadow docket were observers and politicians, three of his fellow justices have criticized the shadow docket's recent use as a vehicle for rulings of major significance.

In recent weeks, the court’s three more liberal justices — Stephen BreyerStephen BreyerPotential Biden Supreme Court pick joins fray over Trump Jan. 6 subpoena Overnight Health Care — Feds, military top 90 percent vaccine rate Massachusetts hospital workers seek Supreme Court relief from vaccine mandate MORE, Sonia SotomayorSonia SotomayorPotential Biden Supreme Court pick joins fray over Trump Jan. 6 subpoena Graham emerges as go-to ally for Biden's judicial picks Supreme Court grapples with excluding Puerto Rico from federal benefits program MORE and Elena KaganElena KaganPotential Biden Supreme Court pick joins fray over Trump Jan. 6 subpoena Graham emerges as go-to ally for Biden's judicial picks Why did courts hit pause for Trump — but not Texas abortions? MORE — have either individually criticized the procedure’s use or joined a dissenting opinion that did so. 

The liberal jurists denounced the majority’s use of the shadow docket in August to block an eviction freeze put in place by the Centers for Disease Control and Prevention (CDC) to shield cash-strapped renters from the coronavirus pandemic. Likewise, a 5-4 majority court refused to block Texas’ six-week abortion ban from taking effect earlier this month. 

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Kagan took direct aim at the practice in a dissent from the majority’s Texas ruling that was joined by her two fellow liberals.

“[T]he majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend,” Kagan wrote.

The shadow docket itself is nothing new. But the Supreme Court had previously used the abbreviated process only sparingly to render decisions of major consequence, according to a report by The Economist, which found the practice became more common during the Trump administration.

Alito conceded in his Thursday speech that the emergency docket has seen an increase in activity.

"Now it is true that we have issued more emergency rulings in recent years, but there is a simple reason for that and it's not part of a nefarious strategy: it's because we had been receiving more emergency applications," he said.

"We would much prefer to have days or weeks or months to think about these matters before we have to do anything," he added. "But we don't have that luxury. The world will not sit still while we cogitate."