Sunshine for the Shadow Docket

The U.S. Supreme Court has been criticized for its “shadow docket” — summary orders that grant or vacate stays or preliminary injunctions without oral argument and often without an opinion of the Court. Although these orders are preliminary matters, they often control events for an extended time. Sometimes they determine the outcome as a practical matter, such as denying a stay of execution in a capital case.

In a change from the usual practice, the Court will hold oral argument on Friday, January 7, in two sets of applications requesting stays in matters involving Covid mandates.

The issues in these cases lie outside of CJLF’s scope, and we take no position on them. We are interested in seeing more light shed on these kinds of orders, though. In criminal law, the problem has been particularly acute in stays of execution in capital cases.

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