Earlier this week, the Supreme Court gave the green light to pro-business, anti-environment Trump-era regulations. That this conservative Supreme Court ruled in this way is normal. But what was somewhat unusual about the ruling was that the court used what is known as its “shadow case” to do so. This secret, irregular and unreasoned decision of the Supreme Court has unfortunately become more common in recent years.
To understand the “shadow case” and what is so problematic about its use by the Supreme Court, you must first think about how the court typically decides its cases. For these cases, after two lower courts decide the case, a party appeals to the Supreme Court. There are briefs from both sides asking if the Supreme Court should take the case. Then, if the Supreme Court decides to hear the case, the parties file new briefs asking the court to rule in their favour. Other people and groups can also file what are called “amicus briefs” giving their outside perspective on the matter. The court then hears the closing arguments in the case, where the lawyers argue their position before the judges. Then, after deliberating on the matter and taking several months to reason about the legal issues, the court issues its decision along with lengthy notices explaining the basis for the decision and any disagreements the judges might have.
This normal order of things takes time, sometimes several years, but this time is the result of a transparent process that allows reasoned decision-making based on the full participation of the parties and even the public. It is this orderly process that, in theory, gives the tribunal its legitimacy. And it’s the legitimacy of the court that makes people in this country follow what the court says and respect its decisions, even if they don’t agree with them.
The shadow case goes against everything that gives the Supreme Court its legitimacy in the normal process. In its less controversial form, the shadow file is used for cases that present genuine emergencies. Think of a death row appeal where the prisoner will be executed within hours if the court does not act. The shadow case allows the court to decide real emergencies like this without the lengthy process that ordinary cases entail. For these types of cases, the role of the shadow folder makes sense.
However, as researchers have documented, since the beginning of the Trump presidency, the Supreme Court has used the shadow case to decide high-profile, contentious issues that do not carry the same level of urgency as an impending death sentence. And for this growing number of cases, the court is rushing everything and changing almost all of its procedures.
Take the example of the environmental case decided earlier this week. A federal trial court ruled against the Trump settlement on October 21, 2021. The case was appealed and on February 24, the federal appeals court ruled that, while the case was decided, the lower court order would remain in place. Without giving this lower court a chance to actually decide the case, the parties appealed to the Supreme Court on March 21. Over the next 9 days, the parties filed three more briefs. Then, without any argument, the Court ruled on April 6 that the Trump settlement should be reinstated. The unsigned court ruling said nothing more than that it reinstated the settlement while the case was on appeal.
In almost every way this differs from the normal way of doing things. The lower appeals court never got a chance to decide the case first. Only one set of briefs was filed. There was no possibility for the memoirs of the general public. The judges never heard argument. They did not meet to deliberate on the matter. There was no opinion explaining the decision. No judge took responsibility for the Court’s reasoning. And the decision was made just 16 days after the initial filing with the Court.
That’s about as far from reasoned analysis and decision-making as judges can get. Dissenting, Judge Elena Kagan was explicit in her criticism of what the court did here, saying the ruling “makes the court’s emergency role not at all for emergencies. The role becomes just another place for determinations on the merits – unless they are made without full briefing or argument.
It should be noted here that Chief Justice John Roberts, one of the court’s conservatives, joined in this dissent. In publicly endorsing this sentiment, the court’s institutional leader is making a bold statement, in line with many critics of parallel court practices. These critics have attacked the use of the shadow record to undermine the legitimacy of the court, rush important decisions, hide voting among judges, make rulings in the middle of the night, and decide extremely important legal questions with minimal reasoning – or not at all. Kagan’s dissent explicitly nods in the direction of those critics, and Roberts apparently agrees.
However, there is nothing he can do about it, as the other five conservative justices of the Court are moving full speed ahead using the shadow case. And, unsurprisingly, they use it to tick off nearly every item on the Conservative legal agenda. In addition to ruling for anti-environmental regulations in the case discussed here, they also endorsed abortion restrictions, limited COVID precautions, allowed religious exemptions to generally applicable rules, greenlighted executions, reinstated anti-immigrant policies, and more.
In other words, this ultra-conservative Supreme Court is exploiting a mechanism that was once reserved for the most emerging cases that come before the Court to further mark its right-wing view of American law and society. And he does it mostly in the dark.