The tale of two dockets is not one that is often told in law schools. Indeed, as students dive into the mechanics of the nation’s highest court, one learns only of the merits docket. This is the ordinary nature of the Supreme Court’s proceedings, where cases are granted review by four justices and which subsequently proceed to months-long briefings, oral arguments, and a majority opinion with detailed explanations for a given decision. But until recent years, the non-merits docket, with its fondness for caseload management, or the issuance of minor routine orders such as time extensions, was hardly newsworthy.
Today’s non-merits docket, however, contains a tale revealing the worst of times in the High Court’s jurisprudential history.
This tale of two dockets describes the extraordinary way in which the Supreme Court can make stay orders, without substantiation or transparency. Granted on rare historic occasions, emergency stay orders had been by no means a regular practice of the Court. But today, the justices are increasingly willing to permit or block agency action without explanation, by simply granting or denying motions to stay.
The above practice is the shadow docket, a phrase coined by Professor William Baude. Recent expanded use of the non-merits docket in this way rings warning bells for many. Indeed, the notion of unreasoned court orders seems antithetical to one of the core elements of the rule of law, one often touted by the Supreme Court in the administrative context: the duty to engage in reasoned decisionmaking.
Notwithstanding Supreme Court Justice Samuel Alito’s recent denial of anything “shadowy” going on in the Court’s use of this procedural function, there are dark implications for the environment. Recall the Supreme Court’s surprising intervention with the Clean Power Plan rule in 2016. In overruling the D.C. Circuit Court’s decision to keep EPA’s regulation to cut carbon emissions from power plants in place pending further review, Chief Justice Roberts, for the first time in the Supreme Court’s history, issued a stay on regulations before an initial review was conducted by a federal appeals court. No arguments were heard, nor a formal opinion given by the Court. However, four justices did feel compelled to note their objection to the order.
Or recall the 2018 Supreme Court stay order, issued without explanation, which effectively halted discovery and trial in the Juliana case, a constitutional climate lawsuit brought by youth plaintiffs against the U.S. government.
In 2019, when the Sierra Club secured a win against the Trump administration’s plan to fund the U.S.-Mexico border wall with Defense Department funds, the Supreme Court intervened by granting the government’s application for a stay with a mere sentence providing the reasoning for the decision. The result: the building of environmentally destructive barriers across wildlife refuges, national monuments, public land and waters, and through communities in multiple states.
In short, the multitude of stay orders issued in the last five years is irregular. The tilted appearance of those decisions in favor of certain administrations is apparent. The lack of reasoning and transparency in those decisions is unbecoming of the highest arbiter of this land. The shadow docket is, unmistakably, a cause for concern for an administration seeking strong environmental regulation.
While the tale of two dockets seems to be here to stay, the tale can certainly be retold. The Biden Commission, tasked with exploring Supreme Court reform, recently concluded its review and included, among its suggestions, an invitation to the Court to consider proposals “that may increase transparency, improve procedure, and generate more visible adherence of judicial ethics.” Indeed, recent actions by the Court, such as the accompaniment of its refusal to stay Maine’s vaccine mandate, with concurring and dissenting opinions, provides a glimmer of transparency and reasoned decisionmaking.
Whether this marks the beginning of a trend bringing the non-merits docket out of the shadows, it is too soon to tell.
Copyright ©2022, Environmental Law Institute®, Washington D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, January-Feburary .