Owing to its inscrutability, the shadow docket has historically received much less public attention or scrutiny. Most shadow docket orders are anodyne — matters as routine as refusing to take up an appeal or giving a party more time to file a brief.
But far more than ever before, the court is using procedural orders on applications for emergency relief while appeals work their way through the courts to resolve disputes affecting the lives of millions of Americans — whether in blocking a rule from the Occupational Safety and Health Administration on a vaccination mandate for large employers, refusing to block Texas’ ban on most abortions after six weeks or putting back into effect congressional district maps that two Alabama lower courts struck down as violating the Voting Rights Act.
Time and again, the justices are ordering lower courts to treat these decisions as precedents — even when, as in last week’s ruling, the order includes no analysis to apply to other cases, which often makes the precedent difficult for lower courts to apply.
Unsurprisingly, these rulings have provoked increasingly strident dissents from the court’s liberal justices.
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