The Supreme Court has two dockets. The first—and far more public—docket comprises the roughly eighty cases each Term that undergo extensive briefing and oral arguments before the Court. These cases can take months, or even more than a year, from the filing of a cert petition to issuance of an opinion by the Court. The second, often referred to as the “shadow docket,” includes a number of requests for emergency equitable relief. For cases on the shadow docket, the Court acts quickly, sometimes in a matter of days, and releases summary decisions without the fanfare of full briefing and argument.
While the COVID-19 pandemic’s effect on the Court’s docket—which resulted in the Court’s first-ever livestreamed, telephonic oral arguments—has been well-publicized, its effect on the shadow docket, though less public, has already provided the Court with the opportunity to explore substantive legal issues arising out of the public health crisis. If the Court eventually grants cert on a case involving the scope of governmental authority to limit the exercise of constitutional rights in a pandemic, the best clues as to how the Justices will evaluate that issue may come from the way the Court has already adjudicated cases on its shadow docket.
So far, the Court has largely taken an institutional approach of deference in shadow docket cases: both to the elected officials who have promulgated public health and safety orders, and to the rapidly evolving judicial process ongoing in lower courts. While the latter feature arises due to the nature of the shadow docket generally, both show a Court that is disinclined to take significant action during the pandemic absent a highly compelling justification, such as a sweeping district court injunction that has not been stayed by a court of appeals or a clearly erroneous lower court decision.
In perhaps its most notable summary order, the Supreme Court denied an application to enjoin a California executive order limiting the size of religious services and other gatherings that a church argued discriminated against religious entities in violation of the First Amendment. Chief Justice Roberts, who concurred in the denial of the application, focused his opinion on the judiciary’s role in the pandemic. He emphasized that coronavirus-related restrictions are “dynamic and fact-intensive matter[s]” involving decisions about public health and safety that the Constitution entrusts to state officials. As long as officials act within the “especially broad” discretion that the Constitution affords them in an emergency, Chief Justice Roberts concluded, they should not be “subject to second-guessing by an ‘unelected federal judiciary.’” This is especially true when “a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground.” Justice Kavanaugh, joined by Justices Thomas and Gorsuch, dissented from the decision, arguing that the order “indisputably” violated the First Amendment by unjustifiably giving greater leeway to certain secular businesses. But even as he did so, Justice Kavanaugh acknowledged the “substantial room” states have “to draw lines, especially in an emergency.”
The Court also declined to grant injunctive relief to churches that brought a similar First Amendment challenge against orders from Illinois Governor J.B. Pritzker that banned religious worship services of more than ten people. It also refused to stay Pennsylvania Governor Tom Wolf’s stay-at-home order in response to a request from a group of businesses and individuals asserting a range of constitutional violations. The Court’s refusal to disrupt these executive-branch responses to the pandemic suggests that it views the judicial branch as unequipped to make public policy judgments during a health crisis, especially when those assessments must be made quickly in light of rapidly shifting circumstances. As a result, the Court may feel more inclined to defer to officials’ assessment of which measures are most appropriate, while still monitoring them to prevent blatant infringements of constitutional rights.
The Supreme Court’s shadow docket has also revealed its general disinclination to intervene and displace the orders of lower courts for cases in the early stages of litigation. During the pandemic, the Court has preferred to let cases play out more fully in the district and circuit courts, which are closer to the evidence and more equipped to adjudicate cases quickly, before stepping in.
Most recently, the Court refused to get involved in a Twenty-Sixth Amendment challenge to Texas’s decision to only allow voters who were at least sixty-five years old to vote by mail without an excuse. Justice Sotomayor wrote separately to highlight the “weighty but seemingly novel questions” the case raised but nonetheless endorsed the Court’s decision to refrain from taking them up “in the context of an emergency application.”
The Court has also largely declined to wade into the several lawsuits brought by inmates asserting Eighth Amendment claims against prison officials for failing to take sufficient precautions to prevent the spread of the virus. The district court in each case ordered the government to take additional measures to protect inmates from contagion. The Fifth Circuit stayed two such orders from courts in Louisiana and Texas pending appeal. In both cases, the Supreme Court turned down the prisoners’ request to vacate the stay and allowed the injunctions to take effect.
Justice Sotomayor, joined by Justice Ginsburg, filed an opinion in the Texas case expressing concerns about the dangers that the prison’s conditions posed to high-risk inmates. Despite her apprehension, Justice Sotomayor agreed with the Court’s refusal to lift the stay due to the “high bar” for undoing a lower-court stay, finding insufficient grounds to conclude that the Fifth Circuit was “demonstrably wrong on this preliminary procedural holding.”
The Court’s few instances of intervention have mostly entailed stays of mandatory injunctions pending appeal. In a prison-conditions case out of Ohio, Justice Sotomayor stayed the district court’s injunction—but she only did so on the suit’s second trip to the Court, after the Sixth Circuit denied the government’s request for a stay. The Court also blocked, pending appeal, a district court order from Alabama enjoining aspects of the state’s election laws due to the pandemic. In issuing these stays, the Court merely preserved the pre-lawsuit status quo, allowing government officials to seek appellate review without having to immediately spend precious time and resources implementing the district court’s ruling.
The Supreme Court’s general hesitance to weigh in on pandemic-related cases seems driven by a view of its own role as a forum mainly for resolving fully litigated disputes. The emergency applications on the shadow docket necessarily involve many factual and legal issues that remain unsettled or unaddressed by the lower courts. This has been exacerbated during the pandemic. The speed with which state and local governments have responded to the crisis has, in turn, accelerated the pace of resultant litigation. The Court thus prefers to avoid interfering absent very clear error below, since it must rule on these motions without the benefit of the thorough briefing and arguments that a more standard case would undergo.
The deferential posture the Court has taken in the COVID-19-related lawsuits that have reached it so far suggests that the Justices do not envision themselves playing a large role in the wave of litigation arising from the pandemic—at least not yet, while much remains in flux. Even where individual Justices have disagreed with the Court’s refusal to grant relief, those disputes have seemed to concern whether specific cases present extraordinary enough circumstances and sufficiently grave legal errors by lower courts to merit intervention. Ultimately, the Justices all appear to view the Supreme Court’s institutional role in a similar fashion—that is, one that works outside the shadows.
Lavi M. Ben Dor received his J.D. from the University of Pennsylvania Law School in 2020. He will begin his career as a litigation associate at a law firm in New York. His prior scholarship can be found here.