Stephen VladeckJun 26, 2023
The Shadow Docket
How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic
Basic Books 2023
Many people are familiar with the United States Supreme Court’s merit docket. Each case follows detailed and professional proceedings that include formal written and oral arguments. The justices’ decisions provide lengthy arguments and citations. They are freely available to the public, press, policy-makers, law makers, judges, and scholars. When the Supreme Court overturned Roe v. Wade in 2022, they ruled publicly – and the press covered it extensively.
But Professor Stephen Vladeck’s new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (Basic Books, 2023), highlights that 99% of the Court’s decisions are “unseen, unsigned, and almost always unexplained” on the “shadow docket.” State and federal policies – and constitutional rights – are affected by decisions that the Supreme Court makes behind closed doors. There are no opinions, no citations, and often observers have little idea which justices supported the action. The term ‘shadow docket’ was coined by law professor William Baude in 2015 – and Professor Vladeck sees a recent, radical, and concerning shift in how the shadow docket has been deployed in recent years. His remarkable book traces the shadow docket’s longer history to explain what is the shadow docket, where did it come from, and how the Court has radically departed from past practice to decide more and more cases out of the public eye. Professor Vladeck argues that the shadow docket has become a norm rather than an exception – and that procedural change impacts constitutional rights and public policy on a large scale including asylum eligibility, abortion, marriage equality, voting rights, and building a border wall. Professor Vladeck insists that, regardless of your individual political leanings, the Court’s increasing manipulation of the shadow docket threatens our shared constitutional system, and should alarm any American who believes in the value of the Supreme Court as an independent and legitimate institution.
Professor Vladeck’s impressively researched (and remarkably accessible) book employs historical analysis and case studies in clear and precise prose. This is a book for scholars, students, – and anyone interested in policy and politics. The podcast ends with Professor Vladeck’s suggestions for how we can all change how we talk about the Court and how Congress can make the Court more accountable.
Professor Stephen Vladeck holds the Charles Alan Wright Chair at the University of Texas School of Law. In addition to his extensive legal scholarship, Vladeck, has argued three cases before the U.S. Supreme Court, co-hosts the National Security Law Podcast, and is editor and author of “One First,” a popular weekly Substack newsletter about the Supreme Court.
John Sebastiani served as the editorial assistant for this podcast.
Susan Liebell is Dirk Warren '50 Professor of Political Science at Saint Joseph’s University in Philadelphia.