177. The (Not-So-)Interim Docket
Justice Kavanaugh's attempt to re-brand how the Supreme Court handles emergency applications is belied by how the Supreme Court is actually handling emergency applications.
Most of the headlines out of the Supreme Court last week came from public comments by the justices—whether by Justice Barrett as she launches her book tour or by Justice Kavanaugh at the Sixth Circuit Judicial Conference in Memphis, Tennessee. Given the paucity of action from the Court itself, I thought I’d use this week’s “Long Read” to reflect a bit on the latter—both Justice Kavanaugh’s (continuing) effort to rebrand the body of rulings the Court hands down on emergency applications as the “interim docket,” and his conciliatory tone, in a room full of judges, about the difficult position the Court’s recent behavior has put lower courts in. Indeed, what both of these things have in common is the Grand Canyon-sized chasm between what Justice Kavanaugh is saying in public and what he (and a majority of the Court) is actually doing in these cases.
Whatever people want to call the Court’s flurry of rulings on emergency applications (a debate that strikes me as an exasperatingly underinformed distraction), it is impossible to look at what the justices (Kavanaugh foremost among them) are saying about the impacts of these rulings, or the real-world effects the rulings are actually producing, and conclude that any label that downplays their significance is remotely accurate. For migrants who have been sent to third countries without due process; for federal employees who have lost their jobs and have virtually no chance of getting them back; for federal grant recipients who have lost funding on which their research has depended; and for lower-court judges who were chastised just two weeks ago by Justices Gorsuch and (you guessed it) Kavanaugh for not doing enough to guess what the implications of even unexplained interventions by the justices are, there is very little about the Supreme Court’s recent behavior respecting emergency applications that seems remotely “interim.”
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But first, the (other) news.
On the Docket
The only actions out of the full Court last week came Friday morning, with the last of three sets of “housekeeping” orders from the summer. My only surprise from that list was its non-inclusion of a denial of rehearing in Apache Stronghold v. United States (a cert. petition the Court denied, over two dissents, back in May). That suggests that the petition for rehearing has received at least some attention within the Court (and, perhaps, someone is writing respecting its disposition). The Court hasn’t granted a petition for rehearing since 2018.
I was also a bit surprised that we didn’t hear later on Friday about the Trump administration’s motion to (significantly) expedite the Court’s consideration of whether to take up the tariffs case (and the merits of that case)—given that the motion asks the Court to grant certiorari by this Wednesday, with briefing to follow and oral argument the first week of November. But I suspect we’ll hear more on that shortly (including, perhaps, the grant of certiorari the government is seeking).
The Trump administration also filed yet another emergency application at the Court on Thursday (its 24th in 32 weeks), this one seeking not just a stay of lower-court rulings that blocked the removal of the one Democratic commissioner left on the Federal Trade Commission (and an administrative stay while the Court decides on the stay), but “certiorari before judgment” so that the Court can take up, before the D.C. Circuit, the question of whether Humphrey’s Executor is, in fact, still good law. The fact that Chief Justice Roberts has yet to call for a response suggests that something more significant is coming—again, perhaps, the grant of plenary review the government is seeking.
The other Court-related news of the week came either from the justices or from lower-court judges talking about the justices. The two most significant examples of the latter include Lawrence Hurley’s remarkable reporting, posted on Thursday, about concerns that a dozen different lower-court judges have raised about the Supreme Court’s behavior to date in the Trump-related cases; and Judge Burroughs’ forceful opinion in the Harvard case on Wednesday, in which she pushed back rather aggressively against the criticisms of lower courts in Justice Gorsuch’s NIH concurrence (footnote 9, in particular, is a doozy). There was also an “apology” from Judge Young (one of the district court judges Gorsuch accused of defying the Court), although (1) it’s not clear to me that Young wasn’t being at least a little bit sarcastic; and (2) it provoked a highly unusual public defense (of Young) from retired Justice Stephen Breyer. That Breyer felt impelled to say something publicly is all the sign you should need of how fraught the relationship is right now between any number of lower-court judges and the justices in the majority in these cases.
Turning to this week, nothing formal is expected from the Court, but it’s likely we’ll see movement on several of the pending emergency applications—and, perhaps, some new ones, as well. The Trump administration’s application in the Southern California roving arrests case has now been pending for more than a month. South Carolina’s application in the transgender student bathroom access case (which I wrote about last week) is also ripe for a ruling this week. And in addition to the new application flagged above in Trump v. Slaughter (the FTC case), it seems likely that the government will be back at the Court as early as today for a stay in the foreign aid impoundment case—after a divided D.C. Circuit on Friday night denied a stay of Judge Ali’s latest ruling. Yet again, then, the Court is going to be focused on a flurry of high-profile emergency applications at a time when it’s usually focused on other things—in this case, gearing up for the Long Conference, which is three weeks from today.
The One First “Long Read”:
Describe What We Say, Not What We Do
The title of my book notwithstanding, I didn’t coin the term “shadow docket.” As a reference to the U.S. Supreme Court, that distinction belongs to University of Chicago law professor Will Baude, who first used it in 2015 as an evocative but primarily descriptive shorthand for all of the Supreme Court’s orders—everything from denials of certiorari to summary reversals to “GVRs” (orders granting certiorari, vacating, and remanding for further proceedings), and in between.
Will’s definition, like mine, was not meant to be demeaning; rather, it was a reference to the obscurity and inscrutability that surrounds all of these rulings—how little is understood, even by experts, about how the Court processes these cases internally; how difficult to parse the Court’s rulings often are (including why the Court ruled the way it did and which justices voted which way); and how some of these rulings can even come down in the literal—and not just proverbial—shadows, with major decisions at times being released even in the wee small hours.¹
Although shadows are the natural result of placing an object in front of a light source, the term “shadow docket” has been criticized as pejorative by at least some of the justices (and many of the Court’s defenders) ever since Justice Alito’s September 2021 speech at Notre Dame Law School—under the not-so-subtle title “The Emergency Docket.” “Recently,” Alito complained, “the catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. This portrayal feeds unprecedented efforts to intimidate the Court or damage it as an independent institution.”
Indeed, September 2021 had been something of a coming-out party for public awareness of the shadow docket—thanks largely to the Court’s rather stunning (and only briefly-explained) refusal to block Texas’s near-total abortion ban from going into effect, and the widespread public criticism that decision provoked. Although the Court had used the shadow docket for an unprecedented flurry of significant rulings on emergency applications throughout the October 2020 Term (in both election- and COVID-related cases), it really was the Texas abortion case that moved the debate over the Court’s behavior (and the much-less-important debate over what to call it) into mainstream discourse.²
Of course, anyone who has actually read either Will’s work or mine would know that neither of us ever viewed the “shadow docket” as coextensive with emergency applications; the latter were merely a subset of the former. Will’s 2015 essay, for instance, focused principally on summary merits rulings by the full Court at the certiorari stage. And the first two chapters of my book are all about the rise of certiorari and its consequences—which is, in the main, a far bigger part of the Supreme Court’s workload than even the recent spate of Trump-related “emergencies.” (Ditto the first-ever post for this newsletter, back in November 2022.)
Nevertheless, the campaign to re-christen one small (but especially significant) part of the shadow docket was on. Even Justice Kagan, the first justice to publicly use “shadow docket” descriptively,³ switched to the “emergency docket” when she was writing not just for the Democratic appointees, but for Chief Justice Roberts. The issue, apparently, wasn’t the substance of critiques from Justice Kagan (or outsiders like me) about how the Court was ruling on emergency applications; it was the “catchy but worn-out rhetoric about the ‘shadow docket,’” as Justice Kavanaugh complained in a February 2022 concurrence.
Even though we went through all of this back then, the rebranding operation has gained new steam in the right-of-center commentariat world—and, as was the case in 2021–22, at the exact same time as the Court has come under sustained, and now renewed, public criticism for how it is handling emergency applications. (You might think that’s more than a coincidence; I couldn’t possibly comment.)
The latest salvo came Thursday, as part of Justice Kavanaugh’s informal remarks at the Sixth Circuit Judicial Conference. According to media reports, Kavanaugh pushed for calling the Court’s body of rulings on emergency applications the “interim docket,” and also went out of his way to emphasize the difficult position that all of these cases have put the justices in; and the challenges lower courts face in trying to figure out what to make of the Court’s unsigned and un- or thinly-explained rulings.
Leaving aside the interesting question of why Justice Kavanaugh doesn’t like Alito’s “emergency docket” terminology (I have a theory),⁴ there are, in my view, two very big reasons why calling the Court’s body of rulings on applications the “interim docket” is far more misleading than critics of the “shadow docket” terminology have claimed that that term is.⁵
First, as a practical matter, the Court’s interventions in these cases are producing massive, permanent, and almost certainly irrevocable effects. When the Court allowed the Trump administration to revoke Temporary Protected Status (TPS) for 600,000 Venezuelan migrants, that subjected many of those individuals to immediate arrest, detention, and removal from the country—removal that will almost certainly be impossible to undo even if the Court ultimately agrees with the lower courts that the revocation was unlawful.
When the Court allowed the Trump administration to fire more than 1400 employees of the Department of Education, that not only upended those folks’ lives, but it almost certainly led them to make other arrangements—new jobs; moving to new cities; etc.—that can’t be undone even if the Court ultimately decides that the government crossed the line. Ironically, it would be easier to describe these rulings as “interim” rulings if the Court was properly accounting for these irreparable harms, since a case could be made that the rulings are more about the equities than the merits. But the Court has silently (and inconsistently) moved away from that traditional, equitable analysis, one result of which is that these harms have mounted—rendering the “interim” tag increasingly inapt.
And that’s with respect to cases that might get back to the Court on the merits; there are plenty of “interim” rulings by the justices that will never come back—e.g., when the Court denies a stay of execution or when the party that loses at the emergency application stage otherwise drops the dispute (like California in the 2021 COVID cases). Thus, referring to the body of rulings in these cases as the “interim docket” is radically downplaying not just the real-world effects of the Court’s interventions, but the number of cases in which the Court’s intervention at the “interim” stage is its only one—because it conclusively resolved the dispute. When the Court closed the door to most universal injunctions in its ruling on the emergency applications in the birthright citizenship case, the whole point of the Court’s intervention, as Justice Kavanaugh himself underscored in his concurrence, was to provide conclusive guidance to lower courts about the proper scope of injunctions.
Second, as a precedential matter, although Justice Alito insisted in his 2021 speech that these rulings don’t create precedents, we now know better—thanks to the Court’s cryptic May order in Trump v. Boyle and a series of separate opinions from the justices applying Boyle since then. Whether or not one thinks rulings on emergency applications can or should have precedential effects, the Court has now repeatedly insisted that they do. And in his concurrence in the NIH case, Justice Gorsuch went further—heavily criticizing lower-court judges in three cases for defying the Court’s rulings on emergency applications, even though one of the rulings at issue was completely unexplained and the others were at least arguably distinguishable from the subsequent cases.
I’ve written elsewhere about what’s wrong with Gorsuch’s NIH concurrence; the relevant point for present purposes is that, if that’s how you view the doctrinal effect of the Court’s rulings on emergency applications (and Justice Kavanaugh joined Gorsuch’s NIH concurrence in full), then it’s no more accurate to call those decisions “interim” rulings than it would be to use that term for a ruling on the merits docket in a case that wasn’t final in the lower courts—such as an appeal of a grant or denial of a preliminary injunction or some other interlocutory order. In both contexts, the Court is making law, explicitly or implicitly, that it is expecting lower courts to follow in different cases. Indeed, Justice Gorsuch made a version of this exact point in NIH—in explaining why merits docket rulings on non-final appeals can also create precedents.
Thus, and unlike what was true as recently as the late 1970s, when even high-profile emergency applications were handled by individual justices “in chambers” and no one thought their rulings had precedential effects, the doctrinal consequences of the Court’s interventions makes it increasingly difficult to describe them as “interim” decisions.
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I’ll confess that I wasn’t surprised by Justice Kavanaugh’s attempted re-branding on Thursday; this argument is all over his concurring opinion in the birthright citizenship/universal injunction case. But what’s really striking to me is the disconnect between the rest of Kavanaugh’s remarks on Thursday and the Gorsuch concurrence he had joined just 13 days earlier.
If you’re a lower-court judge genuinely puzzling over how to handle the Court’s unexplained or thinly explained rulings in these cases, the lesson of the Gorsuch NIH opinion sure appears to be that judges must divine the substantive significance of even unexplained rulings (like the first ruling in D.V.D.), and that good-faith arguments for why a second case is distinguishable from the first are only appropriate to consider if five justices are ultimately going to endorse them. As I wrote at the time, the Court may have the raw power to behave that way, but it’s more than a little disrespectful toward lower courts. For Justice Kavanaugh to turn around on Thursday and play up the difficult position in which lower courts are finding themselves in these cases is rather striking given his own role in making their position so difficult in the first place.
And that brings me back to the item I briefly flagged in the round-up, above—Lawrence Hurley’s story for NBC about lower-court judges from across the ideological spectrum expressing mounting frustration with the justices’ behavior. If I were a Supreme Court justice (that’d be the day), I would view that story as a massive red flag—and I’d be thinking about ways to provide reassurance to my colleagues on the lower courts that we weren’t trying to undermine them. And rather than (or, at least, in addition to) delivering empty platitudes at a semi-public judicial conference and trying to re-brand what those rulings are called, I might think about whether my own behavior in those cases ought to change.
Alas.
SCOTUS Trivia:
“Maybe We Should Write These Down?”
In a future post, I’m planning to walk through the fascinating history of how the Supreme Court has relayed its rulings to the public over time—a history that is more complicated, and involves much more interesting separation-of-powers dynamics, than folks might initially expect.
One kernel in that history is the fact that, from the Founding until well into the nineteenth century, the justices delivered their opinions orally—even after the practice of handing down one opinion for the full Court became standardized under Chief Justice Oliver Ellsworth (and, later, Chief Justice John Marshall). The job of the early Supreme Court reporters, who weren’t salaried (they made money only from the sales of their reports) was to correctly recount the oral summary from the bench (a practice in which, to be fair, the justices regularly assisted). The result is that there are at least some rulings by the Supreme Court in its first decades that do not appear in any published reports. (In 1817, Congress first created a salaried position at the Court for a “Reporter of Decisions.”)
The trivia is when that practice ended. On March 14, 1834, the Court adopted a brief order requiring every opinion to be reduced to writing and delivered to the Reporter of Decisions. Thus, from that point onwards, there ought to be at least an archived copy of every decision by the full Court. But even then, it wasn’t until 1874 that Congress finally provided funds for the Court to publish its rulings itself (the birth of the United States Reports); and it was only starting in 1883 that the Court finally committed to publishing every single opinion it handed down.
Those were the days.
