Members of a House Judiciary subcommittee heard from a number of witnesses Thursday about the sweeping impact of unassigned decisions issued by the U.S. Supreme Court, often handed out with no explanations.
The court’s “shadow docket” — a descriptor given to unassigned rulings and orders taken by justices on emergency petitions that one lawmaker called “unnecessarily pejorative” during Thursday’s hearing — has recently been used with a higher rate of frequency.
The court used the docket to deny women mifepristone and misoprostol — drugs that induce early miscarriages in expectant mothers — by mail after the emergency petition sat for months. The court has used the shadow docket to change state-set Covid-19 restrictions for gatherings of religious groups and execute death row inmates without explanation.
According to Hank Johnson, a Georgia Democrat who leads the subcommittee of courts, intellectual property and the internet, the expansive use of this tool of anonymity was in part a reaction to increased requests for expedited relief from the federal government.
“Under the Trump administration, the Solicitor General sought five times the number of such emergency or extra-ordinary petitions than the George W. Bush and the Obama administrations combined,” Johnson said.
University of Texas School of Law Professor Stephen Vladeck testified Thursday that although the court’s docket for ruling on expedited petitions has always existed, its prominence has only grown because of the court’s aggressive action on those submissions.
While the Trump administration helped some of the uptick in the high court’s use of the shadow docket, he noted that its rulings have broader implications and are being used to change the status quo more frequently.
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