Shadow Orders Keep Courts in Line

The Supreme Court’s opinions in argued cases may attract the most attention, but they are only a small part of the Court’s overall work. In a given term the Court may decide 60 or 70 argued cases, but it will consider and rule on petitions and motions in thousands more. It is these other decisions that make up what is often referred to as the shadow docket. Although it has been around since the nation's founding, this portion of the Court's work is suddenly controversial. There has been a dramatic increase in the number of cases in which the Court has been willing to provide emergency or extraordinary relief through orders issued without argument.

The vast majority of shadow-docket orders are denials of one sort or another, such as the denial of a petition that the Court hear a case. A smaller portion consists of consideration of pleas for extraordinary relief, such as granting stays or injunctions or vacating those entered by lower courts. The Court denies most of these requests as well, but it is the growing number of exceptions that attract attention.

Scholars debate the reasons the justices seem more willing to grant extraordinary relief, and whether the increase is a problem. The lion’s share of relevant cases involve tight timelines or extenuating circumstances, as is the case with election contests, executions, and temporary Covid measures. Many seem to involve a disconnect between the current justices and lower courts, as when the Court has vacated lower court injunctions and stays of execution where such orders had not met the relevant standard for judicial relief. In such cases, the Court is fulfilling its obligation to superintend the federal court system, and ensure lower courts are using their equitable powers appropriately.

Where lower courts step out of line, the justices are sometimes moved to act. This occurred with Juliana v. United States, the so-called “Kids Climate Case,” in which the Supreme Court twice signaled to lower courts its displeasure with the course of the proceedings.

Juliana was likely the most ambitious and aggressive climate change suit filed to date. Among other things the plaintiffs claimed the federal government violated their substantive due process rights to life and liberty by failing to control the emission of greenhouse gases. Juliana presented audacious claims, but it took more than aggressive pleadings to stir the justices into action.

The solicitor general only sought Supreme Court intervention after the district court denied the federal government’s motion to dismiss and blocked an interlocutory appeal, setting the stage for intrusive discovery requests against the federal government, and the appeals court refused to intervene. On the SG’s second try, the Court issued an order denying relief, but making clear a majority of justices believed the district court was out of line. The lower courts got the message, and the case was ultimately dismissed on standing grounds.

The justices also used the shadow docket to put the Obama administration’s Clean Power Plan on ice. As with Juliana, the Court’s intervention is best seen as reactive, here to maintain the status quo so as to ensure courts would have an adequate opportunity to consider challenges to EPA’s aggressive regulatory plan. In a prior case, Michigan v. EPA, judicial review was effectively thwarted, as the agency’s rule was held unlawful only after compliance had been achieved. The folks at EPA celebrated this fact, and it appears the justices were not amused and sought to prevent a repeat occurrence. In this regard, the Court issued a stay so as to preserve its ability to engage in meaningful judicial review.

The Court’s forays into the Juliana and Clean Power Plan litigation were unexpected. They may also be a sign of things to come. In both cases, a majority of the Court exhibited impatience with aggressive judicial or regulatory moves responding to the threat of climate change without express congression-al authorization. This is further evidence it may take legislative action to get climate policy on course, and keep it out of the shadows.