The Shadow Docket: More Steps In The Right Direction
I have been harshly critical of the Supreme Court’s “shadow docket”—orders that stay major government actions without considering briefs on the issues raised by the motion for stay or providing any reasons for the action taken. Unlike some critics of the shadow docket, my criticism is purely procedural. The Court has repeatedly held that an agency cannot take any major agency action without providing an adequate explanation for the action. The Court should apply the same standard to its own decision making. It should not take any major action without explaining why it is taking the action.
Without some explanation for a decision that grants a stay of a major action, we have no way of knowing why the Court took the action. We do not know whether the Court is still applying the traditional four-factor test for deciding whether to issue a stay. If it is applying that standard, we do not know how it is applying that standard. If the stay decision is based on the Court’s belief that the government is unlikely to prevail on the merits, we do not know which of the many issues raised in the motion for stay are the basis for that belief.
I have previously praised the Court for taking one step in the right direction. The Court accompanied its August 24 decision staying the Biden administration’s repeal of the Trump administration’s “stay in Mexico” policy with a brief opinion. The Court referred to one of its prior opinions in which it held that an agency must provide an adequate explanation for any major change in policy if the prior policy induced individuals or institutions to take actions in reliance on the prior policy. The value of even such a brief explanation became apparent when the Biden administration responded to the stay order on October 29 by issuing a much more detailed explanation for its action. That sets the stage for a judicial decision that will determine whether the government’s new explanation is adequate to support the change in policy.
There have been several other recent steps in the right direction. The Court provided a brief explanation for its September 1 decision not to stay the Texas abortion statute. The Court can be criticized for providing an inadequate explanation for its action, but even a brief explanation is better than no explanation. On October 22, the Court agreed to reconsider its decision not to stay the Texas statute. The reconsideration process will provide the Court with the opportunity both to reconsider its decision and to provide a much more detailed explanation for its decision either to grant or to deny the stay.
In an October 29 order, the Court granted certiorari in a case in which it will decide whether the Trump administration’s Affordable Clean Energy Plan (ACE) is lawful. Since the sole justification for ACE was the belief of the Trump EPA that President Obama’s Clean Power Plan (CPP) was unlawful, the Court’s decision to decide whether ACE is lawful will force it to decide whether the CPP was lawful. Thus, the Court’s opinion in the ACE case will provide a basis for understanding why the Court stayed the CPP without opinion in 2016. Even the brief order granting certiorari provides a good clue about the reason for the 2016 stay order. The Court granted certiorari in the ACE case only on the issue of whether the CPP exceeded the EPA’s power to implement section 111(d) of the Clean Air Act. That was one of six issues that were raised in the motion to stay the CPP.
The Court issued another encouraging order on October 29. It declined to stay the Maine vaccine mandate. That mandate is controversial because it does not include a religious exemption. Three Justices joined in a dissenting opinion in which they explained why they would have granted the stay. Notably, two Justices joined in an opinion in which they explained that their decision not to grant the stay was based on their concerns about another characteristic of the shadow docket. They were unwilling to grant the stay without first receiving and considering briefs in which the moving parties provide their reasons for believing that the Maine mandate is illegal and Maine has the opportunity to explain why it believes that its mandate is legal.
I am greatly encouraged by this combination of recent actions. They suggest that the Court is rapidly moving away from its dangerous practice of making major decisions without explaining the basis for the decisions.
Richard J. Pierce, Jr. is the Lyle T. Alverson Professor of Law at George Washington University.
 Richard Pierce, The Supreme Court Should Eliminate Its Shadow Docket, now available on SSRN and forthcoming in Administrative Law Review.
 Richard Pierce, Biden v. Texas Is a Step in the right Direction (Notice & Comment Aug. 28, 2021).
 Whole Women’s Health v. Jackson (Sep. 1, 2021).
 U.S. v. Texas (Oct. 22, 2021).
 West Virginia v. EPA (Oct. 29, 2021),
 Does v. Mills (Oct. 29, 2021).