DOCUMENT1 (DO NOT DELETE)
12/22/2021 9:39 PM
ESSAY THE SUPREME COURT SHOULD ELIMINATE ITS LAWLESS SHADOW DOCKET RICHARD J. PIERCE, JR.* INTRODUCTION ....................................................................................... 1 I.AN ILLUSTRATIVE CASE......................................................................... 6 II.HOW DID WE GET HERE? .................................................................. 10 III.POTENTIAL SOLUTIONS .................................................................... 16 IV.AN OPTIMISTIC POSTSCRIPT ............................................................ 19 INTRODUCTION The Supreme Court has adopted a regular practice of making decisions that have the effect of either allowing the government to take a major action or permanently blocking the government from taking a major action without providing any explanation for its decision.1 It does this by either granting or denying motions to stay lower court decisions issuing preliminary injunctions that bar the government from implementing a major action until the courts have decided whether the action is legal.2 The Court’s decisions granting or denying stays are referred to as its “shadow docket.”3 * Lyle T. Alverson Professor of Law, George Washington University. I am grateful for the assistance provided by my research assistants, Spencer Lindsay, and Catherine Chiodo. I am also grateful to Alan Morrison for providing helpful comments on an earlier version of this Essay. 1. See generally Judge Trevor McFadden & Vetan Kapoor, Symposium: The Precedential Effects of Shadow Docket Stays, SCOTUSBLOG (Oct. 28, 2020, 9:18 AM), https://www.scotusblog.co m/2020/10/symposium-the-precedential-effects-of-shadow-docket-stays (noting that “these ‘shadow docket’ stays are typically short orders with little legal reasoning issued without oral argument, with condensed briefing and on compressed timelines.”). 2. See Hearing Before the U.S. Subcomm. on Courts, Property, and the Internet, 117th Cong. (2021) (statement of Loren L. AliKhan, Solicitor General of the District of Columbia). 3. William Baude first coined the term “Shadow Docket” in 2015, although the practice
1