Deep in the Shadows?: The Facts About the Emergency Docket

27 Pages Posted: 8 May 2023 Last revised: 15 May 2023

See all articles by Pablo Das

Pablo Das

White and Case; University of Southern California Gould School of Law

Lee Epstein

University of Southern California

Mitu Gulati

University of Virginia School of Law

Date Written: May 4, 2023

Abstract

The past few years have witnessed a particular accusation leveled repeatedly and loudly at the U.S. Supreme Court’s conservative supermajority: that they are using the Court’s emergency (or pejoratively, “shadow”) docket to issue highly consequential decisions in a sneaky, secretive fashion. Using data from the Court’s 2021–22 Term and neutral methods, we analyze the entirety of the emergency docket. The results show that conservative interests fare better on the emergency docket, just as they do on the merits docket—no surprise considering the Court’s political orientation. Unsettling as this may be from a liberal or legal-formalist perspective, there is little evidence that any of this is happening in the shadows.

Keywords: shadow docket, emergency docket, US Supreme Court

JEL Classification: K40

Suggested Citation

Das, Pablo and Epstein, Lee and Gulati, Mitu, Deep in the Shadows?: The Facts About the Emergency Docket (May 4, 2023). Virginia Law Review, Virginia Public Law and Legal Theory Research Paper No. 2023-41, Virginia Law and Economics Research Paper No. 2023-11, Available at SSRN: https://ssrn.com/abstract=4438597

Pablo Das (Contact Author)

White and Case ( email )

1221 6th Avenue
New York, NY 10020
United States

University of Southern California Gould School of Law ( email )

Los Angeles
United States

Lee Epstein

University of Southern California ( email )

2250 Alcazar Street
Los Angeles, CA 90089
United States

HOME PAGE: http://epstein.usc.edu/

Mitu Gulati

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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