Conservative justices on the US supreme court consciously broke with decades-old congressional rules and norms to shift laws governing religious freedom sharply to the right through a series of shadowy unsigned and unexplained emergency orders, a new book reveals.
Five of the six conservatives who now command the majority on the US’s most powerful court have rammed through some of their most contentious and extreme partisan decisions using the so-called “shadow docket” – unsigned orders issued frequently late at night, in literal and metaphorical darkness. The orders do not reveal who voted for them or why, often providing one-line explanations of the legal thinking behind them.
The switch from openly argued cases, aired in public, to the unaccountability of the shadow docket was made purposefully during the pandemic in cases dealing with religious liberty, concludes Stephen Vladeck, an authority on the federal courts at the University of Texas law school. He warns that the trend is merging with the current ethics scandals surrounding the conservative justice Clarence Thomas to damage the legitimacy of the court and threaten a full-blown constitutional crisis.
Vladeck exposes the largely unnoticed shift towards furtive justice in his new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He shows how rightwing justices have abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.
Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.
Among those orders were decisions that have had profound and nationwide impact over some of the most hotly disputed areas of public life, from abortion to immigration, voting rights, the death penalty and religious practices. Many appear to align more closely with Republican political priorities than with legal principles.
One such order alone, the decision on the shadow docket to block the Biden administration’s January 2022 requirement that large employers mandate Covid vaccinations for their workforce, affected more than 83 million Americans – about a quarter of the US population.
“The rise of the shadow docket reflects a power grab by a court that has, for better or worse, been insulated from any kind of legislative response,” Vladeck writes.
The author chronicles how the most disturbing use of the shadow docket came with the rewriting of constitutional protections for religious liberty. The dramatic shift followed the death of the liberal justice Ruth Bader Ginsburg and her replacement in 2020 with a devout Catholic rightwinger, Amy Coney Barrett.
The switch gave the conservative majority sufficient votes to overcome all resistance to ramping up use of the shadow docket, including from the chief justice, John Roberts, who though conservative has expressed mounting unease about the practice.
The change in tactics could be seen almost immediately. Within weeks of taking her seat, Barrett joined four other rightwingers – Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – to drive through a major change in the constitutional understanding of religious liberty, blocking New York state Covid restrictions on the numbers of worshippers allowed to gather in churches.
The order was unsigned and gave virtually no explanation for a decision that profoundly changed the law of the land, rolling back government regulations where they touched upon religious practices. It was issued at four minutes before midnight on the day before Thanksgiving – a moment that would guarantee minimal media attention.
The ruling was all the more extraordinary as by then New York had scaled back its Covid restrictions and churches no longer had to limit congregation sizes. So the court’s change in the law was moot.
The same five rightwing justices went on to impose their will on religious liberty laws with similar late-night one-sentence rulings knocking back state Covid restrictions in California, New Jersey and Colorado. In total, the majority issued emergency injunctions against state Covid rules on religious grounds six times in four months.
The sudden spate of shadow docket orders that followed Barrett’s arrival on the court was not accidental, Vladeck says. The justices could have taken up several pending cases in full court that would have addressed the issue of religious freedoms in open hearings on the merits, yet they chose to go the obscure shadow docket route.
“Here we have the court not just using emergency applications to change substantive legal principles, but doing so even as they are considering requests to make the same changes through merits decisions,” Vladeck told the Guardian.
Vladeck links the rise of the shadow docket to the increasing isolation of the supreme court and its disconnection from public opinion. The growing use of the shadow docket also mirrors the polarisation and toxification of American politics.
Vladeck warns that the growing trend towards jurisprudence produced in darkness is endangering the legitimacy of the nation’s most powerful court. Public confidence in the court is already at a historic low, compounded by the recent revelations that Thomas accepted lavish gifts from the Republican billionaire Harlan Crow.
“The shadow docket is a symptom of a larger disease,” Vladeck said. “The disease is how unchecked and unaccountable the court is today, compared to any of its predecessors.”
