EP 685 US Supreme Court Does Most of its Work in the ‘Shadows’

Every October we wait to see what cases the US Supreme Court will be taking on in the coming session.  And every June we wait to see how they rendered their judgments.  On today’s podcast, we tell you ‘the rest of the story.’  You see almost 99 percent of the court’s decisions take place on the shadow docket, a term that was coined by legal scholar William Baude in 2015 for those orders that are not subject to what he calls “the high standards of procedural regularity set by its merit cases.”  The latter being the cases we think they are limiting themselves to accept in emergency cases, where a ruling is needed expeditiously to keep a possibly innocent person from a death sentence.  Our guest, law professor Stephen Vladeck argues in his new book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” that this growing practice arose over the last century as a way to help judges address their growing caseload.  Now it serves, in his mind, to make them more and more unaccountable to the American people.

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