The Shadow Docket and the Rocket Docket: Shedding Quick and Sluggish


In September, the Supreme Court docket granted certiorari in Ramirez v. Collier, and set a super-expedited briefing schedule. On the time, I wrote “the Justices moved a capital case from the shadow docket to the rocket docket.” I believe I used to be the primary individual to make use of the phrase “rocket docket” within the context. Over the previous 4 months, the time period has caught on, because the Justices have chosen to speed up a number of circumstances slightly than determine them summarily. Along with Ramirez, the Court docket positioned the S.B. Eight circumstances on the rocket docket. And the COVID mandate circumstances got related remedy. Right here, the Justices have demonstrated that they will resolve high-profile circumstances in a really short-time body. For my part, this experiment has been one thing of successful.

Now, how did we get right here? I believe the Court docket launched the rocket docket in response to the incessant public criticisms over the shadow docket. Certainly, Justice Kagan objected to the shadow docket in her Complete Lady’s Well being I dissent. And, Justice Breyer used the phrase in an interview.

In Complete Lady’s Well being II and NFIB, the conservative Justices adopted a daily course of to rule in opposition to a progressive coverage. These have been full rulings on the deserves. And much more importantly, the Court docket set essential precedents that may prolong far past these case.

Are critics of the shadow docket glad now? All issues thought-about, what would the Biden administration actually have most well-liked? A one paragraph shadow docket entry staying the OSHA mandate? Or an 11-page opinion that adopts a rigorous studying of the most important questions doctrine, and constrains all sides of federal energy? All issues thought-about, what would the abortion suppliers actually have most well-liked? A one paragraph shadow docket order that denied a keep? Or a prolonged opinion endorsing the reasoning of S.B. 8, which permits different states to carbon-copy the strategy?

In some ways, shedding quick on the shadow docket is extra advantageous than shedding sluggish on the rocket docket. One of many strongest arguments in favor of the shadow docket is that the Court docket can keep away from setting essential precedents in a hurried style. An unexplained abstract order would solely govern one case. However as soon as a case is briefed, and argued, the opinion should set a brand new precedent.

I believe after this time period, criticism of the shadow docket will fade.

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