Without the right context, the shadow docket may seem like a menacing tool from a sci-fi movie, but reality is far less fantastical. The shadow docket is the process by which the Supreme Court issues a decision without oral arguments or a formal signed opinion with legal reasoning. The use of the shadow docket by the Supreme Court reduces transparency in the American justice system, leading to the rise of issues from the lack of public legal reasoning on cases. Despite these drawbacks to the use of the shadow docket, the Supreme Court has been using it increasingly often.
In contrast to the shadow docket, the merit docket is the typical process by which the Supreme Court often issues decisions and is the basis for the use of precedent. Because these decisions are public, the merit docket promotes transparency within the Court. Additionally, the Court’s reasoning provided in merit docket decisions can be used by lower courts as precedent to substantiate subsequent rulings — a crucial aspect of the American judicial system.
The merit docket process ensures a transparent deliberative process and mandates that Supreme Court justices provide opinions as public legal reasoning for their decisions. Both the use of precedent and the transparency brought about by the use of the merit docket are crucial to the functioning of the justice system.
Historically, the shadow docket has been used by the Court to address relatively unimportant issues and procedural matters. Due to the sparse and uncontroversial use of the docket throughout most of the Court’s history, these rulings were often ignored. Some cases decided by the shadow docket, such as the execution of the Rosenbergs in Rosenberg v. United States and the election-deciding case in Bush v. Gore, have garnered significant media attention; however, the quantity of these shadow docket cases has remained relatively low and stable.
Recent events contradict this trend. In the 2024-25 Supreme Court term, 111 cases were decided by shadow docket — greater than a 150% increase from the 2023-24 term. This massive spike between terms demonstrates a dangerous expansion of the shadow docket. If the shadow docket continues to expand in this way, there could be serious consequences for the American judicial system.
One of these consequences is the lack of transparency and legal reasoning present within the shadow docket. A prime example of this comes in the recent Supreme Court case, Kennedy v. Benson, decided in 2024.
Robert F. Kennedy Jr. ran for President in the 2024 election, initially as a Democrat, and then as an independent. However, in late August 2024, he withdrew from the race and requested that his name be removed from all ballots. While most states complied with the request, Michigan Secretary of State Jocelyn Benson declined, citing a state law that prohibits candidates from withdrawing their names from the ballot.
In response, Kennedy filed a lawsuit claiming that Michigan’s law did not apply to him as he was running for a federal office, not a state one. While Michigan’s Court of Appeals agreed with Kennedy, Michigan’s Supreme Court did not. Eventually, the case made its way to the U.S. Supreme Court, which declined Kennedy’s injunction, making its decision by use of the shadow docket. Save a dissent from Associate Justice Neil Gorsuch, the Court provided no majority opinion or publicly available legal reasoning.
Kennedy had three arguments. First, he argued that Michigan’s law violated Article II, Section I of the U.S. Constitution in that a state law should apply only to state offices and not to the federal election of the President. By refusing to allow him to withdraw his name from the ballot, Michigan was compelling his speech. Kennedy said this violated his First Amendment right to free speech as he was being forced to share an untrue message to Michigan voters. Finally, Kennedy claimed a violation of the Equal Protection Clause of the 14th Amendment. Michigan state law applied only to parties that did not have a candidate polling above five percent and, therefore, unfairly favored major party candidates in their ability to withdraw from races.
Kennedy’s arguments all presented potential violations of the Constitution. It would make sense for the Supreme Court to hear oral arguments in the case due to the Court’s important role as the interpreter of constitutional nuances. Instead, the Court refused to hear oral arguments, declined the injunction, and provided no legal reasoning to the public for the majority decision.
Overall, the use of the shadow docket by the Supreme Court to effectively ignore this case provides grounds for worry. Because the Court failed to provide legal reasoning for its decision, it remains unclear whether it denied the injunction on the merit of Kennedy’s constitutional claims or for another reason altogether. As a result, no legal precedent can be created that may be useful in future cases.
The use of the shadow docket by the Supreme Court, even as just a means to decide whether or not to hear a case, presents dangers to the future of the law in the United States. As seen in Kennedy v. Benson and many similar cases, the Court can use the shadow docket to effectively defer cases that could have serious implications on the interpretations of the Constitution and the law in the United States.
While a movement towards minimal use of the shadow docket would be favorable, justices do not have unlimited time. It would simply not be plausible to add 111 cases to a caseload already numbering around 60. Therefore, it might make sense for the Court to attempt a happy medium — provide transparency to the public while also prioritizing their main caseload. A potential solution could be that the Court produces a short write-up containing legal reasoning for the decision that is viewable to the public. This would still fall short of the dozens of pages of reasoning associated with merits cases, but at least would provide some necessary context to significant rulings.
Even this small change could go a long way for the appearance of the Court and transparency within the American legal system. The Court shows no signs of slowing down with its use of the shadow docket, which could have the unintended effect of decreasing confidence in an already unpopular Supreme Court. Indeed, as of 2023, less than half of Americans maintained a favorable view of the Supreme Court.
Public disapproval of the Supreme Court is bad for the American judicial system, as it shows that the Court is not acting in the way that the people have entrusted it to. Therefore, to maintain and improve confidence with the American people, it is imperative that the Supreme Court curbs its use of the shadow docket and moves toward more transparent solutions for cases that justices do not deem worth their time.
