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Tuesday, August 17, 2021

The Shadow Docket of the Past

Will Baude's description of the "shadow docket" is one of the most important contributions to Supreme Court scholarship in the past decade. While the importance of these non-merits dispositions is growing, there have always been such cases. I was thinking about writing some posts about notable historical shadow docket cases and what lessons we might draw from them.

Here's a famous one. In 1948, Lyndon Johnson stole the Texas Senate primary election, as fans of Robert Caro's books know. LBJ's opponent in the primary, Coke Stevenson, obtained a temporary injunction from a federal district court that prevented state officials from listing Johnson as the Democratic nominee pending a hearing into the fraud allegations. The injunction was quickly appealed to Justice Hugo Black in his capacity as the Circuit Justice. Justice Black granted a stay of the injunction, which the full Court affirmed a week later.

What did Justice Black say in his opinion in this important case? The answer is that there was no written opinion. Nor was there an opinion by the full Court. The stay determination, which proved vital to LBJ's rise to the presidency, was a shadow docket case.

That said, Justice Black did allow journalists to observe the arguments, which were held in his chambers. And Black did give an oral ruling, which was quoted in part by The New York Times. (Basically, Black's rationale was that there was no statutory authority for a federal court to intervene in a state election.) 

Perhaps one lesson here is that sometimes an individual Circuit Justice should hear arguments that are open to journalists before referring the matter to the full Court or deciding the issue. (Justice Barrett's recent decision to affirm Indiana University's vaccination policy is an example.) There need not be a written opinion, but in the absence of such an opinion some transparency is required.

Posted by Gerard Magliocca on August 17, 2021 at 09:47 PM | Permalink


Just clarification to my comment down there:

It is not only about oral reasoning or alike.

But even if it is written, but otherwise than official one, written by the judge himself (although some technical corrections rather, may be tolerable).

Because, if so nuanced, while not written by the judge itself, one may always doubt the validity of it, and leaving so, the issues decided, unclear and ineffective.

One can't really understand a ruling, until reading it, as a whole, and until the last bit of it.

That is not desirable even, but absolutely warranted.


Posted by: El roam | Aug 18, 2021 6:10:07 AM

This is not at all a good idea (as understatement even).

Even when it is written opinion, it is hard for laymen to understand it. Fates are sealed, without understanding it properly typically. So, surly oral one, in critical issues let alone, is very bad idea, and one judge should avoid it as much as possible.

For the principle of public hearing and transparency, it vital principle.

Typically, rulings are so nuanced and complicated , that it is hard to understand it intuitively.

So, we are left then, with no tangible anchor even, for having basis for reasonable speculation on the ruling and its consequences and significance.

One judge should avoid it.


Posted by: El roam | Aug 18, 2021 5:27:21 AM

Indeed, in-chambers arguments on emergency applications were still fairly common well into the 1970s. And before the Court shifted to a continuous Term in 1990, in-chambers decisions were all that was possible over the summer (unless the Court re-convened for a Special Term). But after the Cambodia bombing contretemps in August 1973, the practice started to fade, and the Supreme Court Practice treatise suggests that there hasn't been an in-chambers argument since 1980. In my testimony to the Commission on Supreme Court Reform back in June, one of my suggested reforms to the shadow docket was for the Justices to return to more of the pre-1980 practice: https://www.whitehouse.gov/wp-content/uploads/2021/06/Vladeck-SCOTUS-Commission-Testimony-06-30-2021.pdf

Posted by: Steve Vladeck | Aug 17, 2021 10:28:51 PM

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