The Supreme Court’s Shadow Docket: Vladeck Testifies Before U.S. House Committee on the Judiciary

While Texas was in the midst of a historic winter weather emergency last month—during which nearly 45% of Austin was without power for days on end—Prof. Steve Vladeck braved the elements to get to his office to participate in a remote hearing for the U.S. House of Representatives’ Committee on the Judiciary.

The hearing, officially organized and hosted by the Subcommittee on Courts, Intellectual Property, and the Internet, concerned a practice of the U.S. Supreme Court that observers refer to as a “shadow docket,” which is described by ScotusBlog as “the informal term for the emergency rulings and other orders that the Supreme Court hands down outside its normal process for issuing formal opinions in argued cases.” (The term was coined by Prof. William Baude, Director of the Constitutional Law Institute at the University of Chicago Law School, in 2015.)

Prof. Vladeck has been highly visible in constitutional law circles writing and speaking about the Court’s shadow docket since 2o18, when he penned “Power versus discretion: Extraordinary relief and the Supreme Court” for ScotusBlog. That led to his 2019 essay, “ The Solicitor General and the Shadow Docket,” in the Harvard Law Review, in which he noted that many were holding then-U.S. Solicitor General Noel Francisco accountable for abusing his office’s traditional role in the judicial system by:

“(F)il(ing) an unprecedented number of requests for emergency or extraordinary relief from the Justices, asking the Court to hear certain appeals before the lower courts have finished ruling; to halt the effect of lower court rulings pending the Supreme Court’s review; or to jump over the courts of appeals and directly issue writs of mandamus to rein in perceived abuses by different district courts.”

Without excusing what he saw as bad faith action by Francisco in several high-profile cases, Prof. Vladeck argued that, “it is the Court, first and foremost, that is responsible for enabling (if not affirmatively encouraging) the Solicitor General’s unprecedented behavior.”

That essay caught the attention of at least one particularly noteworthy reader, Justice Sonia Sotomayor, who cited it (pre-publication) in her September 2019 dissent in Barr v. East Bay Sanctuary Covenant, and wrote, “(G)ranting a stay pending appeal should be an ‘extraordinary’ act… Historically, the Government has made this kind of request rarely; now it does so reflexively. Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here.”

Prof. Vladeck had the chance to discuss all of this, and other aspects of his analysis of recent Supreme Court practices, with fellow witnesses Amir Ali, Deputy Director, Supreme Court & Appellate Program, MacArthur Justice Center, Lauren AliKhan, the Solicitor General ofThe District of Columbia, and Prof. Michael Morley of Florida State University College of Law.

The entire hearing, including Prof. Vladeck’s lively back and forth with Rep. Mondaire Jones, of New York’s 17th District, can be viewed at the link above or on the House Committee on the Judiciary’s YouTube Channel.