Illuminating the Shadow Docket: On the Increasing Impacts of This Evolving Judicial Procedure

The Supreme Court has been using the orders docket to grant stays and injunctions since 1790, but the orders docket has recently been nicknamed the “shadow docket” because its use—and influence—are growing. Because shadow docket decisions have a profound impact on millions of people, and are made without the benefit of full briefing or argument, this Note will explore the modern use of the shadow docket and opportunities for reform. To examine the impact of recent trends, this Note will proceed in six parts. Part I will discuss the orders that make up the shadow docket and explain how they compare with orders on the merits docket. Part II will take a historical look at how the shadow docket was used by the early Supreme Court and explore how that historical use compares to modern use. Part III will address the way that internal and external factors may have played a role in the recent growth of the shadow docket. Part IV will discuss issues that arise from these shadow docket decisions, and how they affect the public’s trust in the judiciary. Part V will then examine how two substantive areas of law have been affected by shadow docket decisions: election law and immigration. Finally, Part VI will present recommendations for shadow docket reform.

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