Assessing the Influence of Supreme Court’s Shadow Docket in the Judicial Hierarchy

Abstract

The Supreme Court’s increased use of the “shadow docket” and the salience of the issues handled on the shadow docket have raised normative concerns over its use. Critics argue that the Supreme Court should not make law without following established procedures of a full briefing, oral arguments, and deliberation. Those seeking to defend the Court point out that decisions made on the shadow docket do not create binding precedent and only resolve the issue before the Court. We examine whether shadow docket decisions are used as precedent by lower courts. We come to two general conclusions. First, shadow docket cases are invoked as precedent much less frequently than merits docket cases. Second, shadow docket cases receive more engagement from the lower courts when the Supreme Court provides a justification for its shadow docket decision and when the Supreme Court grants relief and thereby changes the status quo. Our results help evaluate and provide responses to the normative criticisms of the Court’s reliance on the shadow docket to create law.

Keywords:

• Supreme Court
• judicial behavior
• shadow docket
• judicial hierarchy

Notes

1 Although it should be noted that scholars are increasing questioning whether perceptions of procedural fairness are independent from an individuals agreement or disagreement with specific outcomes (Armaly 2021; Badas 2016, 2022; Strother and Gadarian 2022).

2 In some context this may mean that the Court did not issue an opinion, but an individual Justice issued a statement on the outcome selected by the Court. In these situations it is difficult to determine whether the court citing the particular case is citing the Court’s outcome or the Justice’s statement on the case. It appears in most contexts, the citing court is citing the Court’s outcome rater than the Justice’s individual statement on the outcome. We came to this conclusion by reviewing every citation for a random sample comprising 10% of cases in our dataset. Of this sample, all but one case saw every citation focus on the case outcome rather than the Justice’s individual statement. With that said, further research is needed on how citing courts make this distinction and the political dynamics that shape such decisions.

3 Typically, an individual Justice will write an opinion respecting the Court’s opinion to provide more detail on the Court’s opinion. Essentially, such writings serve as concurring opinions.

4 Of the shadow docket cases in the dataset, 23.53% have zero citations. There are also outliers at the upper end with citations in excess of 300. To facilitate the presentation of the distributions, we present the natural log of the observed value +1. We add one to account for the zeros observed in the dataset. An additional figure of the distributions using the observed values is provided in an appendix (Figure A1).

5 The Federal Circuit has cited shadow docket cases just three times but this is probably more of a reflection of their specialized docket rather than any procedural norms within the Circuit.

6 This creates a standardized measure that allows for better over-time comparisons. For example, if in 2006 there was 1 case decided and in 2007 there was 1 more case decided. The total number citable cases in 2007 is 2. In 2008 5 more cases were decided, meaning there is a total of 7 citable case in 2008.

7 The findings to our randomized inference simulations are substantively similar whether or not we include the term strata.

8 Death penalty cases will serve as the omitted reference category in our models. Thus, each issue’s coefficient represents its effect relative to death penalty cases. This is justifiable because death penalty cases are the most common shadow docket case.