OM DETTA AVSNITT
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In last weekend’s Judicial Notice, I had an interesting exchange in the comments with a reader about what to call the Supreme Court’s other docket—all the SCOTUS cases that are decided without full briefing and oral argument, i.e., not the “merits cases.”
For an excellent primer on this docket, check out Dean Erwin Chemerinsky’s SCOTUSblog post. He refers to this docket as either the “emergency docket” or the “shadow docket,” which are the two most commonly used terms for it—and argues that what’s happening on it “should concern us all.”
Between “emergency docket” and “shadow docket,” my commenter has a preference:
I think that “shadow docket” remains the perfect term. No matter how closely the media cover it, the media can never report on exactly how the justices voted on a case unless the judges themselves choose to say so. There can be no analysis of an opinion of the Court that does not exist. To the extent that full briefing, oral argument, and participation of amici bring light to the justices and help them reach decisions, it is light that rarely reaches the shadow docket.
To the extent people dislike the term “shadow docket” because it sounds pejorative, too bad. If the Court chooses to act in the shadows, they deserve to get some criticism for it.
That’s one point of view. For one response, see Justice Brett Kavanaugh’s recent remarks at the Eighth Circuit Judicial Conference.
It did make me wonder: what do other readers think of this issue? Please take my reader poll. And sound off in the comments on this Friday Notice & Comment post, which are open to all readers (not just paid subscribers).
If you’d like to read some discussion before casting your vote, here are my thoughts on the various options. I owe much of them to Sarah Isgur and David French of Advisory Opinions, who have been debating the issue for quite some time.
1. Emergency docket. I believe this is the most longstanding term for this docket. And it was actually not a bad descriptor back when this docket consisted largely of requests from death-row inmates for stays of execution, life-or-death matters that must be decided quickly.
Today, however, many of the cases on this docket, including some of the most high-profile ones, are not really “emergencies.” They get resolved in weeks, not hours or days—which isn’t most people's idea of an “emergency.”
2. Shadow docket. This term was first used in a 2015 law review article by Professor Will Baude. It then was used by Professor Stephen Vladeck in the title of his bestselling book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.
The objection to “shadow docket” is that it has a negative connotation. As Justice Samuel Alito put it in a 2021 speech, this “sinister” term makes it sound as if the Court has been “captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”
To some people, like my original commenter, the negativity is a feature, not a bug: “If the Court chooses to act in the shadows, they deserve to get some criticism for it.” But as a journalist, I try to be more neutral. (Interestingly enough, Professor Baude, who coined the term, is less negative about the shadow docket than many other commentators on the Court.)
The term “shadow docket” has been used by a justice at least once in a written opinion. In her dissent in Whole Woman’s Health v. Jackson, Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, wrote as follows:
Today’s ruling illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process…. [T]he majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.
3. Interim-relief or preliminary-relief docket. “Interim-relief docket” is the preferred terminology of my husband Zach, now the executive editor of SCOTUSblog, who thinks it most accurately describes what the justices are actually doing on this docket: providing preliminary, as opposed to permanent, relief. But I find both “interim-relief docket” and “preliminary-relief docket” too wordy—as well as triggering to those of us with GI issues.
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4. Equity docket. This is the term David French has been pushing on Advisory Opinions, since it captures the way the Court takes into account equitable considerations when deciding cases on this docket (as I was hoping my traffic-court judge would do). But I agree with Sarah Isgur that in the age of controversies over “diversity, equity, and inclusion” (DEI), the word “equity” has too much baggage.
5. Short-order docket. This is my preferred term. It’s punchy. It’s neutral. It’s descriptive: the orders (and opinions relating to orders) are pretty short on the short-order docket.
Some people say it sounds frivolous, making them think of short-order cooks—but I think the cooking connection is a good thing. Observers of the Court need to remember that what we’re getting on the short-order docket isn’t the same as what comes out of the merits docket, where the justices have the benefit of full briefing, oral argument, and way more time.
Put another way, we’re talking burgers, not filet mignon. And that’s why short-order docket fits the bill.
6. Non-merits docket. This term doesn’t get a lot of love. But it has actually been used a fair amount over the years, and it’s probably my second-favorite term. It’s also quite neutral, and it’s not overly wordy. If people can’t stand the image of Chief Justice Roberts flipping burgers in a grease-stained apron, then maybe “non-merits docket” is the way to go.
Readers, what are your thoughts? Please take my poll. I ask about your political views because (1) I’m curious to see how they correspond to people’s preferred terminology and (2) I’ve been wondering for a while about the political leanings of my audience.
The poll is pretty self-explanatory, but here are some quick notes:
On the first question of your preferred term, I’ve set the answers to shuffle, i.e., the order will be random. I didn’t want to privilege any particular response through the ordering.
There’s also an “Other” option for that first question, where you can enter a suggestion that’s not among the options. Perhaps one of you will come up with the best name for this docket; I’ll share any ideas that I find compelling.
On the second question about your political party, if you pick “Other” for your party affiliation, please fill in your affiliation.
On the third question about your political opinions independent of party, I know this is not the greatest question, especially for those of us whose views are hard to categorize. But it’s still a standard polling question, widely used by people who know far more about polling than I do. Interpret it however you wish.
Again, please take the poll by clicking here.
This is a Notice & Comment post, so comments are open to all, not just paid subscribers. I look forward to a robust debate on the different options for what to call that docket. Thanks!
UPDATE (8/19/2025, 1:30 p.m.): Based on around a week of voting and 500 responses, here’s a write-up of the (very interesting) poll results, Emergency, Shadow... Or Half-Enchilada Docket? The Results.
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