Shadow docket: Difference between revisions

== Procedure ==▼

In the Supreme Court's ordinary proceedings, cases are filed to the merits docket.<ref name="slate"/> Cases are accepted if four justices decide to [[Certiorari#United States|grant ''certiorari'']] (the so-called [[rule of four]]), with the overwhelming majority being denied (around 80 out of 7,000–8,000 petitions for certiorari are granted each term<ref name=reporter/>{{rp|15–16}}). Accepted cases then feature full briefings (including from ''[[amici curiae]]'', if any) and oral arguments,<ref name="slate" /> with cases generally lasting months.<ref>{{cite web |title=Supreme Court Procedure |url=https://www.scotusblog.com/supreme-court-procedure/ |website=[[Scotusblog]] |access-date=September 24, 2021}}</ref> Finally, the Court issues a lengthy, signed majority opinion, in which the majority extensively explains its reasoning for the ruling.<ref name="slate" />▼

For the shadow docket, following an application to the relevant [[circuit justice]], they will decide whether to independently make a ruling or refer it to their colleagues.<ref name="reporter"/>{{rp|3, 4–5}} It is dealt with on an accelerated time frame, with decisions coming in a week or less.<ref name=Economist/> Should a justice proceed alone, the parties in a case may request that other justices overrule them instead.<ref name="reporter"/>{{rp|3, 4–5}} According to the Court, there are four criteria for stays to be granted:▼

{{Blockquote▼

|text=<nowiki />▼

# that there is a "reasonable probability" that four Justices will grant certiorari, or agree to review the merits of the case;▼

# that there is a "fair prospect" that a majority of the Court will conclude upon review that the decision below on the merits was erroneous;▼

# that irreparable harm will result from the denial of the stay;▼

# finally, in a close case, the Circuit Justice may find it appropriate to balance the equities, by exploring the relative harms to the applicant and respondent, as well as the interests of the public at large.<ref name="reporter">{{cite web |title=A Reporter's Guide to Applications Pending Before the Supreme Court of the United States |url=https://www.supremecourt.gov/publicinfo/reportersguide.pdf |website=Public Information Office |publisher=[[Supreme Court of the United States]] |access-date=February 6, 2021 |archive-date=November 23, 2020 |archive-url=https://web.archive.org/web/20201123195512/https://www.supremecourt.gov/publicinfo/reportersguide.pdf |url-status=live }}</ref>{{rp|2–3}}▼

}}▼

Shadow docket orders are usually unsigned and unexplained. Court observers may attempt to infer how the justices split based on signed concurrences and dissents, rather than the majority opinion.<ref name=dottedlines/> In the Court's August 2020{{snd}}July 2021 term, the exact vote count was known in 14 cases out of the 73 cases referred to the whole court (there were 150 shadow docket cases in total). There were 56 merits docket rulings during that period.<ref>{{cite news |last1=Hurley |first1=Lawrence |last2=Chung |first2=Andrew |title=Analysis: U.S. Supreme Court's 'shadow docket' favored religion and Trump |url=https://www.reuters.com/legal/government/us-supreme-courts-shadow-docket-favored-religion-trump-2021-07-28/ |access-date=December 25, 2021 |work=[[Reuters]] |date=July 28, 2021}}</ref> There are two types of shadow docket orders: ones that deny [[writ of certiorari|''certiorari'']] and emergency orders for cases still being litigated in lower courts.<ref name=dottedlines/> Inferences for judicial splits are inexact unless there are three public dissents for ''certiorari'' denials or four for all other orders.<ref name="slate">{{cite news|last1=Vladeck|first1=Steve|author-link=Steve Vladeck|date=August 11, 2020|title=The Supreme Court's Most Partisan Decisions Are Flying Under the Radar|work=Slate|url=https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html|url-status=live|access-date=February 5, 2021|archive-url=https://web.archive.org/web/20210206183756/https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html|archive-date=February 6, 2021}}</ref>▼