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Congress May Move Against Supreme Court’s Shadow Docket

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March 24, 2021

Recently, and without acknowledgment, the Supreme Court has changed the way it decides most cases. It has skipped the appeals procedure in favor of a hurried process behind closed doors known as “the shadow docket.” Opinions are issued in the early hours of the AM without hearing arguments or receiving full briefing. Between 2017 and 2020, the number of divided shadow docket decisions increased roughly tenfold. Sometimes the opinion’s author, or how each justice voted, is not revealed, leaving the public left to guess why or how the law has changed, and by what reasoning the Court was convinced to change it. SCOTUS has the power to do this so that emergency orders can be issued in rare circumstances, but it has begun using the shadow docket regularly in controversial cases which have included Trump’s border wall, COVID-19 restrictions, and executions. The House Judiciary Committee held a hearing to decide what, if anything, Congress can do to address the problem. Plenty, according to legal experts such as Steve Vladeck, a professor at the University of Texas School of Law.

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