Posted Oct 22nd 2020 12:15 pm by James Romoser
This article is the first entry in a symposium on the Supreme Court's “shadow protocol”.
Towards the end of two meandering days of questions in the Senate hearings for Amy Coney Barrett last week, Senator Richard Blumenthal (D-Conn.) Posed a question that has likely never been asked at any other Supreme Court nomination hearing.
"Do you know what they say – the Supreme Court shadow protocol?" he asked.
Barrett, who worked for Justice Antonin Scalia, said it was her. "The shadow protocol has become a hot topic in recent years," she added.
Barrett is right. In fact, for the past few months the court has been making urgent decisions on coronavirus guidelines, immigration restrictions, the death penalty, access to abortion, the U.S. census, and procedures for the upcoming election. All of these decisions were part of the court's shadow protocol.
The court itself would never use this term. In 2015, law professor William Baude shaped it unofficially to refer to the orders issued by the Supreme Court outside of the formal statements in the around 70 cases in which he hears orally in each term of office. Some of these arrangements are peripheral and procedural. But others resolve, at least temporarily, controversial political disputes or life and death issues. And this year, the Shadow Protocol is gaining more prominence – and attention – than ever before.
Concerns about the Shadow Protocol relate primarily to a special system that allows litigants to seek emergency assistance from the Supreme Court during ongoing litigation. Under normal procedures, a case does not reach the judges until full review and final decisions by a court and an appeals court – a process that typically takes months, if not years. However, the shadow protocol gives the litigants a shortcut: if a lower court makes a decision (even a preliminary ruling that does not rule the full case), the losing side can ask the Supreme Court to order an emergency stay of that decision. A stay when the judges issue one freezes the lower court's decision and drains it of power while the litigation continues. By maintaining the status quo as it existed prior to the lower court's ruling, emergency stays can encourage litigation in hope that time is running out.
Traditionally, litigants must meet a high legal standard in order to deserve emergency residency. Among other things, they have to prove that they would suffer “irreparable harm” if the lower court's decision remained in force. This onerous standard is intended to reserve this form of relief in circumstances where immediate court intervention is required to avoid extraordinary consequences. Everyone agrees that emergency stays shouldn't be a way of shorting out the normal appeal process. However, as the number of such requests has increased in recent years (including a multitude of such requests from the Trump administration), Justice Sonia Sotomayor has argued that the court itself has tacitly lowered the bar for litigation to obtain emergency stays in the shade.
Strictly speaking, emergency stays are not decisions about the legal merits of the underlying dispute. This is evident from the abbreviated procedures with which the court decides on them. The emergency holding of inquiries usually means that the judges act very quickly, based on shorter-than-usual written pleadings and without an oral argument. When judges decide on the motions, their decisions take the form of brief procedural instructions that give little or no indication of their justification. Sometimes they are displayed late at night. Often it is not even clear which judges were in the majority and which judges, if at all, disagreed. In virtually every way, these shadow decisions look nothing like the drawn-out, deliberate opinions the court prepares for months to resolve cases on its regular "merit" slip.
Although shadow docket decisions are temporary and nominally procedural rather than full legal opinions, they sometimes have the effect of delivering a decisive material victory to one side. This can happen when time is short and it is virtually impossible for the litigation to proceed to a final judgment on the matter. Take, for example, the Supreme Court's October 13 ruling in a dispute over the end date of the census. Although this decision was intended as a temporary pause for litigation to continue, the effect of the decision was to allow the government to stop the census immediately – a decision that, given the tight census deadlines and enormous practical scope, almost certainly not Difficulties that would result from attempting to restart the count after the end can be undone.
A similar situation arises in the context of fast-paced electoral disputes, where the Supreme Court's "temporary" emergency orders are sometimes the final say in the conduct of elections. Just this week the court resolved two such election-related motions and issued superficial orders requiring Pennsylvania to extend the deadline for postal ballot counting (a Democrat-favored result) and allow Alabama officials to impose a roadside voting ban reintroduce (a Republican favored outcome).
In the next few days, SCOTUSblog will publish a series of articles by experts from the Supreme Court on the increasing importance of the shadow protocol. Our series will analyze the essential areas of law that dominate the Shadow Protocol this year. It will compare the Trump administration's emergency relief efforts to those of previous administrations. And it will examine the impact of the burgeoning Shadow Protocol on the practice of the Supreme Court and the public perception of the court.
The Supreme Court is not an institution known for its transparency. However, it is known for careful thought. Despite its power, the shadow book sometimes lacks both. The symposium we're starting today aims to bring the files out of the dark.
Symposium: Shedding light on the shadow files
SCOTUSblog (October 22, 2020, 12:15 p.m.),