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Lawmakers consider nudging Supreme Court toward more transparency on the shadow docket

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Democrats and Republicans on a House panel agreed Thursday that the Supreme Court should be more transparent when it issues significant rulings on its so-called shadow docket, and some lawmakers floated the possibility of legislation to force the justices to disclose their votes in such cases.

The rare bipartisan consensus on a court-reform issue came during the first-ever congressional hearing devoted to the shadow docket – the informal term for the emergency rulings and other orders that the Supreme Court hands down outside its normal process for issuing formal opinions in argued cases.

As SCOTUSblog and others have noted, the shadow docket’s importance has escalated in recent years, with the Supreme Court increasingly intervening in high-profile litigation before lower courts have had a chance to issue their final rulings. These shadow-docket decisions affect coronavirus policies, abortion restrictions, the death penalty and other divisive issues – but they often take the form of short, unsigned orders that do not explain the court’s reasoning or identify how each justice voted.

“At a minimum, more transparency is needed,” said Rep. Henry “Hank” Johnson, the chairman of the House Judiciary subcommittee on courts, intellectual property and the internet. “Knowing why the justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public’s trust in the court’s integrity.”

Republicans on the panel expressed similar sentiments.

“I am a big fan of judges and justices making clear who’s making the decision, and I would welcome reforms that required that,” said Rep. Louie Gohmert, a Texas Republican, adding that he believes Congress has the power to create appropriate rules for the Supreme Court.

Legal experts who testified at Thursday’s hearing pointed to a range of negative consequences from the uptick in unexplained shadow-docket rulings, including a risk to the court’s fundamental legitimacy and more practical problems when lower courts or policymakers attempt to implement inscrutable rulings.

Loren AliKhan, the solicitor general of the District of Columbia, highlighted the court’s shadow-docket order last week that prevented Alabama from executing a prisoner without his pastor present in the execution chamber. Only seven of the nine justices disclosed how they voted on the issue, with four indicating they were in the majority and three others noting their disagreement.

“Four justices put their name on it. But it takes five justices to rule on something. And so there was clearly someone lurking in the background that cast that vote who did not want to be accountable for it,” AliKhan said.

Justices Samuel Alito and Neil Gorsuch were the two justices who did not disclose their votes.

Lawmakers floated various ideas to encourage or mandate more transparency. Rep. Darrell Issa, the panel’s ranking Republican, said lawmakers should select a few shadow-docket rulings of high public interest and write a bipartisan letter to the Supreme Court seeking the votes of each justice and other information about how the court arrived at the decisions. Rep. Ted Lieu, a California Democrat, wondered aloud if Congress has the power to require the justices to sign their names to what he called “quasi-merits” rulings – shadow-docket decisions that may be nominally procedural but in fact resolve substantive legal issues.

Professor Stephen Vladeck of the University of Texas School of Law testified that it was a “close question” whether Congress can require the court to disclose its votes.

“Even if it might be within Congress’ raw constitutional power, I’m not sure it would have the desired result,” Vladeck said, adding that the court might respond by publicly issuing every shadow-docket ruling unanimously, even if there was deep disagreement behind closed doors.

Vladeck suggested that Congress should instead consider reforms that would “take pressure off the shadow docket” by making it easier for the court to quickly take up time-sensitive issues under its ordinary procedures, which entail more extensive briefing, an oral argument, and a signed opinion that explains the court’s rationale. For instance, Vladeck said, Congress could mandate special appellate procedures that would allow faster and smoother adjudication of certain types of cases, such as death-penalty appeals or lawsuits in which a lower court issues a nationwide injunction against a government policy.

Professor Michael Morley of Florida State University College of Law said that overbroad injunctions are a key reason for the increase in emergency shadow-docket rulings. When a district judge issues an injunction against a federal policy, the Supreme Court has a “tremendous impetus” to respond through extraordinary shadow-docket measures, rather than allowing the policy to remain on hold while the normal litigation plays out, Morley said. Several Republican lawmakers voiced agreement, complaining of district judges who issued sweeping rulings against Trump administration policies over the past four years.

Amir Ali, the deputy director of the Supreme Court & Appellate Program at the MacArthur Justice Center, focused on the court’s use of the shadow docket to resolve final appeals in capital cases. He pointed to a string of decisions – including last week’s case involving the Alabama prisoner – in which the court issued seemingly contradictory and mostly unexplained orders about whether inmates are entitled to have a spiritual adviser with them in the execution chamber.

“The use of the shadow docket means we have no idea what justified the disparate treatment of these men, and when the difference is life or death, even the appearance of arbitrary decision-making risks the very legitimacy of our legal system,” Ali said.

He suggested that Congress could pass a law mandating a higher standard for the Supreme Court to overrule lower-court decisions that put executions on hold.

Thursday’s hearing of the House Judiciary subcommittee on courts – which was the panel’s first hearing of the new Congress – was not the only bipartisan congressional action this week aimed at bringing more transparency to the Supreme Court. On Tuesday, two senators – Democrat Sheldon Whitehouse of Rhode Island and Republican Lindsey Graham of South Carolina – released a letter to Chief Justice John Roberts calling for greater disclosures of gifts and outside income received by the justices.

“We believe a legislative solution may be in order to bring the judiciary’s financial disclosure requirements in line with other branches of government if the Court does not address the issue itself,” Whitehouse and Graham wrote.

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