How the Supreme Court Changes Laws Behind Closed Doors

For generations, public discussion of the US Supreme Court has treated the Court largely as the sum of its written rulings—the dozens of legal disputes that the justices resolve each term through lengthy opinions handed down via a carefully choreographed procedure after months of briefing, oral argument, and internal deliberations. When we talk about the Court, we talk about Brown v. Board of Education (the 1954 ruling that desegregated public schools). We talk about Miranda v. Arizona (the 1966 ruling that requires police officers to warn suspects of their rights before interrogating them). We talk about Roe v. Wade (the 1973 ruling protecting a constitutional right to previability abortions) and Dobbs v. Jackson Women’s Health Organization (the 2022 decision overruling it). And we view the Court through the lens of these decisions—a lens that focuses attention on the ideological divisions reflected in each of those rulings—which justices joined the majority, and which ones dissented. Our assessment of the Supreme Court is, in the main, driven by our sense of whether these rulings are “right” or “wrong.”

When most conversations about the Supreme Court start from that premise, they are naturally going to sort participants into camps aligning with their ideological preferences. And since 2010, those debates have increasingly mapped onto our partisan divisions as well: for the first time in American history, the ideological orientation of each of the justices matches the political preferences of the president who appointed them.

The result is not only to skew debate toward the merits and demerits of specific methodological approaches to legal interpretation (such as “originalism,” which suggests that the Constitution ought to be interpreted to align with how it was generally understood when it was adopted); it is also to accept, without much in the way of critical reflection, the notion that the current Court is a lightning rod entirely because of the bottom lines of its written decisions. Thus, Democrats criticize a Supreme Court with a majority of justices appointed by Republicans for overruling precedents without sufficient justifications and for aggrandizing power from other institutions in our federal system; and Republicans criticize Democrats—who tolerated, if not embraced, parallel behavior when the Court tilted further to the left—for their hypocrisy.

In the process, we’ve lost the ability to talk about the Supreme Court as an institution. The Court’s blockbuster decisions and the ideological wrangling about them tend to consume all available oxygen—distracting us from other stories about the Court, the justices, or both that are just as significant, if not more so. Thus, no one has noticed as the Court’s docket has slowly but steadily shrunk—so that the justices today are handing down written rulings in one-third the total number of disputes as a generation ago, and the fewest number of cases overall since the Civil War. No one has noticed that Congress, which for almost two-hundred years regularly exerted leverage over the Court through lots of ways big and small, has spent several decades sitting on the sidelines. And, until a series of reports emerged from ProPublica and other media outlets beginning in April 2022, no one (including the Supreme Court press corps) had noticed that at least some of the justices have long been engaging in personal behavior infected with serious questions of ethical and financial propriety.

What these developments have in common is accountability—or, more precisely, the lack thereof. The Constitution cements the principle of judicial independence as a bulwark against tyrannies of the majority. But it includes measures for preventing tyrannies of unelected judges as well. The challenge is striking the right balance between an independent Court and an unaccountable one. And although Congress historically pulled various levers to try to keep the Court in check, it has, of late, gradually disengaged from such a role—resulting in a Court that does not believe it is, or ought to be, beholden to anyone else. Justice Samuel Alito captured this point quite directly in July 2023, telling the Wall Street Journal in an interview that, in his view, “no provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.” Alito is wrong as a matter of both the plain text of the Constitution (Article III, Section 2 literally gives Congress the power to “make…regulations” of the Court’s jurisdiction) and well-settled historical practice, but the fact that this mentality is even in the zeitgeist is a telling reflection of where we are.

I wrote The Shadow Docket to try to illuminate how we got here—and to do so by providing an introduction to how the Court operates that goes well past the handful of headline-generating decisions that draw the lion’s share of public attention. In 2015, my friend Will Baude, a University of Chicago law professor, first used the term “shadow docket” as an evocative shorthand for one critical piece of that context—the thousands of rulings that the justices hand down each year apart from the written rulings in the five dozen cases on the “merits docket” that still receive multiple rounds of briefing, oral argument, and lengthy, written opinions respecting their disposition. Indeed, one of the things that we’ve missed in viewing the Court as the sum of those written rulings is that they represent only about 1 percent of the Court’s total output in any given year. Baude thought it obvious that we should pay more attention to the other 99 percent; I took him up on the invitation.

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Excerpted from The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic by Stephen Vladeck. Copyright © 2024. Available from Basic Books, an imprint of Hachette Book Group, Inc.