Deep in the Shadows?: The Facts About the Emergency Docket
27 Pages Posted: 8 May 2023 Last revised: 15 May 2023
Date Written: May 4, 2023
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: Suggested Citation