President Biden is learning a whole new meaning for the term shadowboxing. This particular type of sparring often happens under the cover of night, and without explanation. And Biden is the underdog.
Biden’s opponent? The US Supreme Court. And the ring in which they rumble is the court’s shadow docket.
Throughout the summer — in fact, nearly continuously throughout the last several years — the justices have been issuing summary orders that decide the extent of the White House’s executive powers.
The “shadow docket,” so coined by University of Chicago law professor William Baude six years ago, is the court’s practice of issuing unsigned orders, often handed down without a full opinion detailing the justices’ reasoning. Until recently, it was limited to exigent matters, such as whether a lower court ruling should be temporarily halted while the court decides whether to take up an appeal.
While it is certainly the role of the court to decide issues including the limits of presidential authority, such weighty judgments have traditionally come during the court’s regular term, with a full examination of the arguments and in public view. But lately, the rulings come in the form of terse summary orders, drafted out of sight, often issued at night when few are watching.
And for those challenging a presidential order or other matter, the process of getting to the shadow docket is a lot easier than convincing the court to take up a case on the merits. Any litigant can appeal to one justice, who then decides whether to forward the matter to the rest of the court.
If that happens, an order can follow quickly, sometimes within days. Consider the host of shadow docket rulings in favor of churches and other organizations seeking to opt out of pandemic safety measures imposed by cities and states since last year — giving the court leverage to dramatically expand the scope of religious freedom claims in the process.
Another staple of the shadow docket: execution appeals, meaning that the cases the court decides with a quick stroke of an anonymous pen are often matters of life and death.
But the scope of the shadow docket’s reach is wide. A recent example: the court’s move Tuesday night to stop Biden from scrapping former president Donald Trump’s policy that forces asylum seekers at the southern border to wait in Mexico.
In a one-paragraph “miscellaneous order” — that’s how the court characterizes it — the court stated that Biden would probably lose in defending the order in court. The court did not explain, however, why it deemed Biden’s case a likely lemon. It simply referred to a ruling it issued last year that stopped Trump from rescinding another immigration order, that one issued by Barack Obama, creating the Deferred Action for Childhood Arrivals program.
The three justices who now make up the court’s Democratic-appointed minority, Stephen Breyer, Elena Kagan, and Sonia Sotomayor, noted their dissent. But like those in the majority, they gave no reason. And that was that. The court, which has repeatedly ruled that issues of foreign policy and immigration are within the purview of the executive branch, made the call.
The result? Thousands of migrants who are fleeing the devastating impacts of political unrest and persecution in their home countries, climate change, and the pandemic remain stuck, many in dangerous circumstances. Many have reported being attacked, sexually assaulted, and kidnapped while waiting for their asylum claims to be decided.
By the time you read this, a shadow docket may have notched another TKO — this time in a challenge to Biden’s decision to extend the federal pandemic eviction moratorium. Justice Brett Kavanaugh has already signaled that Biden will be on the losing end of that bout as well.
Biden isn’t the only president to bear the shadow docket’s blows. It also targeted the Obama and Trump administrations.
But “the divisiveness of the shadow docket has been even more homogenously ideological than the divisiveness of the merits docket,” Stephen Vladeck, professor at the University of Texas School of Law, said in testimony before the presidential commission on Supreme Court reform in June.
Vladeck, who has written extensively about the dangers of the shadow docket, said that while cases before the full court can sometimes end with the “strange bedfellows” of majority opinions joined by justices across the political spectrum, with rare exceptions it’s clear which way the justices will rule even before they do.
With Biden, that will often mean a 6-3 loss. But more important, it is a loss for the American people, who deserve far more transparency and accountability for the decisions issued by the highest court in the land that affect the nation.