It’s no surprise that, as the country’s highest legal chamber, the U.S. Supreme Court consistently makes the news. Over the past few years, coverage has increased around how the Court handles emergency requests through its “shadow docket.” This term has popped up most recently when the Court has intervened in redistricting, determining the fate of districts and the voters they contain for years to come.
What is the shadow docket?
Every term, the U.S. Supreme Court decides to hear around 80 lawsuits that have been appealed through the court system. In order to decide the merits of the appeal, the case goes through a lengthy briefing process, where interested parties can submit “friend of the court” briefs, and an hour-long oral argument is held before the Court. Following internal deliberation among the justices, they then release a formal opinion outlining the decision of the majority, often accompanied by concurrences or dissents. The entire process can take up to a year from start to finish.
Sometimes, though, there are emergency requests, often asking the Court to pause a lower court’s order while an appeal is ongoing, that need to be decided on an expedited timeline. These requests come in the form of applications that go through the Court’s emergency docket, which has been nicknamed the “shadow docket.” Unlike the normal appeals process, cases that go through the Court’s shadow docket do not undergo full briefing or oral arguments and are often decided in just a few days or weeks by unsigned — meaning you do not know how the justices voted — and unexplained orders.
While the Court has had a process for deciding emergency requests since its founding, it has come under scrutiny in recent years for its increased reliance on the shadow docket and the overall lack of transparency associated with it. An obvious pitfall of unsigned shadow docket rulings is that the public does not have the benefit of reviewing merits briefs and listening to oral arguments. This also has an implication on the law: Lower courts are given little to no guidance on how to interpret the Court’s orders as they relate to ongoing or future cases.
Unlike the opinions released on the merits docket, where each justice’s vote is openly noted, orders from the shadow docket generally do not indicate how each justice voted unless a concurrence or dissent is also filed. And, though defenders of the shadow docket emphasize that these orders only decide procedural issues and don’t speak to the merits of a case, the decisions that come out of the shadow docket still have real consequences. Even a procedural order that does not signal the final outcome of a case can cause irreparable harm to individuals — and they may not know who voted in favor of the decision and why. This reality has most recently played out regarding COVID-19 rules, abortion rights and environmental protections. The shadow docket has also played an outsized role in redistricting this cycle, sometimes changing the trajectory of district lines in a matter of days. Through emergency applications, the Court has already ruled on new maps in four states so far: Alabama, North Carolina, Pennsylvania and Wisconsin.
What happened in each state?
After Alabama was ordered by a lower court in January to adopt a new congressional map with two majority-Black districts out of seven total districts to ensure that Black voters — who make up one-third of the state’s population — are properly represented, the state went to the U.S. Supreme Court to fight back. In an unsigned opinion, a majority of the Court paused the lower court’s decision and reinstated Alabama’s previous congressional map containing only one majority-Black district for the 2022 election cycle (the merits of the map will be decided during the Court’s next term). Justice Brett Kavanaugh, joined by Justice Samuel Alito, wrote a concurrence that provided some explanation for his vote in support of this: Alabama’s election cycle was fast approaching and altering district lines would cause “significant cost, confusion, or hardship.” In defense of his decision, Kavanaugh pointed to the Purcell principle, which states that courts should not change voting or election rules close to an election in order to avoid confusion for voters and election officials alike. As Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, pointed out in her dissent, however, Alabama’s primary elections were nearly four months away and the general election was about nine months away. At the time of the decision, even absentee voting for the primary election did not start for another two months.
Earlier this year, the North Carolina Supreme Court struck down the state’s congressional map for being a partisan gerrymander that violated the North Carolina Constitution. A new map drawn by court-appointed special masters, which is much fairer than the original map, was adopted for the 2022 election cycle. However, Republican state legislators appealed the adoption of this map to the U.S. Supreme Court, arguing that the Elections Clause of the U.S. Constitution only allows state legislatures, rather than state courts, to draw new congressional districts and therefore any map passed by a state judicial system is unconstitutional. The Court denied their application in an unsigned order that offered no supporting explanation. However, Kavanaugh wrote a concurring opinion outlining his rationale. While he thought that “the underlying Elections Clause question raised in the emergency application is important,” he felt it was too late in the election cycle to change district lines, “just as it was too late for the federal courts to do so in the Alabama redistricting case last month.” Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote a separate dissent outlining his preference for resolving the “exceptionally important” question of state court involvement in congressional redistricting through this appeal. Interestingly enough, even though Alito joined Kavanaugh’s concurrence in the Alabama case stating that it was too late for Alabama to adopt new districts nearly four months before its primary election, Alito thought here that — even though the candidate filing deadline was mere days after the decision — “promptly granting a stay would have been only minimally disruptive in the circumstances here.”
After the Republican-controlled Pennsylvania Legislature and Democratic governor failed to agree on a new congressional map, the Pennsylvania Supreme Court adopted a new congressional map in February. Republicans, angry that state courts were involved in congressional redistricting, went to federal court to try and undo this, which it declined to do. Next, the Republicans went to the U.S. Supreme Court, arguing that the new congressional map needed to be blocked because the state court system “cannot step into the shoes of the legislature and impose a congressional map.” In an unsigned order with no concurrences or dissents, the Court denied the Republicans’ request for relief, thereby leaving the court-adopted congressional map in place.
In March, the Wisconsin Supreme Court adopted new congressional and legislative maps, having taken over the redistricting process after a political deadlock over redistricting occurred between the Republican-controlled Wisconsin Legislature and Democratic governor. Two different applications were filed in the U.S. Supreme Court seeking to block the newly-adopted maps. Republican congressmen challenged the congressional map and argued that the Wisconsin Supreme Court violated the Due Process Clause of the U.S. Constitution by not explicitly stating which standards it would use to evaluate map proposals. In an unsigned order with no concurrences or dissents, the U.S. Supreme Court denied the congressmen’s request to restart the congressional map-drawing process, thereby leaving in place the map adopted by the state Supreme Court.
The Wisconsin Legislature and voters challenged the new legislative maps, alleging that the new state Senate and Assembly maps were racial gerrymanders that violated the U.S. Constitution. A majority of Supreme Court justices agreed with this argument in an unsigned order, finding that the state Supreme Court improperly used race when adopting new legislative maps — despite the fact that the court did not have VRA or race-based claims before it — and therefore the districts were racial gerrymanders. Sotomayor, joined by Kagan, dissented, writing that this decision ignored the proper process for challenging the maps on racial grounds. When the Wisconsin Supreme Court reviewed the legislative maps, it decided to replace the previously-adopted maps drawn by Gov. Tony Evers (D) with ones drawn by the Republican-controlled Legislature, decreasing representation for Black voters in the Legislature.
What does all of this mean?
What can we take away from all of this? A drawback of these unsigned shadow docket rulings is that we have to decipher the outcomes and look at the explanations we have in the form of concurrences and dissents. From what we do have, though, we’re able to pull out a few key details.
Timing matters, but how close is too close?
One common theme across these redistricting rulings is that timing matters — but a clear definition of “too close to an election” remains elusive. For example, timing did not appear to be a concern regarding Wisconsin’s maps. When the legislative districts were sent back to the Wisconsin Supreme Court for review, there were four and a half months until the state’s primary elections. Compare this to Alabama’s congressional map, which was reinstated because the state’s primary elections were three and a half months away. Without having a detailed opinion before us to decipher the rationale behind this, the public and other courts are left in the dark about how the justices define the “eve of an election.”
Even with this vagueness, concern over timing (and whether the U.S. Supreme Court will step in and overturn a lower court decision if it’s deemed “too close” to an election) has already affected other redistricting litigation. In Georgia, a federal judge declined to block Georgia’s new legislative and congressional maps for the 2022 election cycle even though he found that the maps likely violate the VRA. The judge specifically pointed to Alabama’s order and Kavanaugh’s non-binding concurrence as evidence that “it would be unwise, irresponsible, and against common sense for this Court not to take note of” this recent action. A challenge to Washington’s legislative maps similarly won’t get relief in time for the 2022 elections because of the Court’s shadow docket ruling in Alabama.
The approach of individual justices to the shadow docket varies.
Much of the coverage on the Court’s shadow docket activity as it relates to redistricting has focused on the role of conservative justices and potential political motives behind their decisions. While we can’t be certain how every single justice voted unless they publicly noted a concurrence or dissent, we do know some details about the Court’s conservative justices. While Kavanaugh remained consistent in his concurrences in Alabama and North Carolina that both states were too late in the election cycle to order changes to maps, Alito flip-flopped on his position between the two states. While Alito joined Kavanaugh’s concurrence in support of reinstating Alabama’s congressional map so as to not cause “chaos” for election administrators and voters — three and a half months before Alabama’s primary elections were scheduled — he did not appear to share the same timing concerns on blocking North Carolina’s map for 2022 election despite fast-approaching election deadlines. Chief Justice John Roberts, on the other hand, criticized the Court’s decision to reinstate Alabama’s map. Even though he signaled a desire to review the Court’s current precedents for deciding vote dilution cases, he thought that the merits docket, not the shadow docket, was the proper avenue to do so.
Compare this to what we know about the Court’s liberal justices: Kagan, Sotomayor and Breyer publicly dissented from the Alabama order, and Kagan and Sotomayor publicly dissented from the Wisconsin order, criticizing the Court’s shadow docket actions for unnecessarily interfering with lower court orders and negatively impacting voters.
One thing is certain: Even if justices dismiss criticisms of the shadow docket, asserting as Kavanaugh did in his Alabama concurrence that these emergency orders do not speak to the actual merits of a lawsuit, these decisions have real-world implications on voters. In Alabama, Black voters remain “cracked” and “packed” across congressional districts, going to the polls in 2022 with less voting power than their white counterparts. Black voters will also have less representation in the Wisconsin Legislature for the next decade as a result of the Supreme Court’s order. And, with the end of the Court’s term months away, it’s possible that even more voters will be affected by unexplained and unsigned orders from the nation’s top court.