SCOTUS and the “Shadow Docket”
April 14, 2022
The conservative wing of the United States Supreme Court is being accused of using an emergency docket, not for legal emergencies, but instead to signal how they might rule on future cases. Chief Justice John Roberts recently joined liberals in a dissent and in that dissent criticized the abuse of the so-called “shadow docket,” where rulings are issued without full briefings or arguments. Earlier we spoke with attorney Stephen Montoya of Montoya, Lucero and pastor about the use of the shadow docket.
Montoya gave us a little background on the topic.
“We are talking about the Court’s procedural docket, and a lot of the matters on the courts procedural docket are really not very eventful at all. For example, if you are overworked and need a little extension in which to file your brief you have to file a motion with the court, and it goes on the courts procedural docket which is now, since 2015, known as the shadow docket… basically it is all the motions for procedural orders from the courts, that are considered separate and apart from the merits docket. In the merits docket you have oral argument and opinions, where as the procedural docket you only have like a one line order often times,” Montoya said.
These can be used in emergency cases, you can file an emergency motion for a stay of execution, for example. The criticism of the court is that they are using it for non-emergency procedures. Montoya says it is hard to deny that this is true.
Most people say that congress would, statutorily, stop the court from doing this. Montoya says that they may be right, but that this could cause a “constitutional crisis”. He says that if Congress undercuts the court, the court will decide that that was unconstitutional. In essence, they may not like the encroachment.