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The Significance Of the Shadow Docket In Evaluating Sowell’s “Greenhouse Effect”

By David B. Arnold, American University Class of 2021

March 9, 2021

The image of the Supreme Court in the popular imagination is of a body of scholar-judges who decide cases in an open forum. Whether or not one likes the current justices, or even the institution, many people think of the Court as a somewhat public body. Of course, most controversies appealed to the highest court are never heard, because they do not raise new and important constitutional issues. However, there is a third way. An increasing number of decisions are reached in private with no oral argument and only initial briefing. This is the melodramatically named “Shadow Docket”. According to Mark Walsh of the American Bar Association, the recent discomfort of many jurists with the Supreme Court shadow docket is the way in which it was used by the Trump Administration. In the later years of the Trump Administration, the Solicitor General’s office would often try to go directly to the Supreme Court for emergency relief issues where the government had lost at the trial court. As Justice Sonia Sotomayor wrote “Stay applications force the court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument,” she wrote. “They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay.” [1]. This is an unorthodox remedy, as the normal path would be an appeal to the court of appeals for the district that the trial had occurred in. The Trump Administration actively pursued a strategy of appointing judges who it saw as sympathetic to conservative values and an extreme view of the extent of executive power. This no doubt informed the shadow docket strategy, although results for the Trump Administration on controversies at the Supreme Court was very mixed, as we were reminded this week when the Court handed down an order to Trump’s accountancy firm, Mazers LLC, to cooperate with the New York Attorney General’s investigation into Donald Trump’s conduct regarding his tax obligations, in effect reiterating a decision from May[2]. The conservative Supreme Court also refused to hear a single election based challenge.

Orders and memoranda from the Supreme Court need not be a controversial instrument in and of themselves, but the last four years have seen increasingly major rulings on federal policy made by summarily written orders, not always signed, and often with the vote count undisclosed. Texas v. Pennsylvania (2020) , which contained a theoretical view that states could not sue each other over internal voting procedures, an important doctrine that went ascribed to no one [3]. However, the more mystifying instances are cases like Archdiocese v. Cuomo (2020) which contained 33 pages of varying opinions by the various Justices despite only the appeal and the response having been read[4]. Although the way judges vote can be somewhat predictable, argument can be worthwhile by differentiating the case from earlier precedent or bringing up novel arguments. It seems somewhat concerning for the Court to issue a detailed opinion on a case that it has only analyzed in a very general way.

While the Supreme Court may seem to be absolutely untouchable, Congress can affect its procedure. Recently, there has been a bipartisan push on the House Judiciary COmmittee to legislate that going forward decisions have to be signed and have a breakdown of the votes and some brief synopsis of the reasoning for the order[5]. This would be useful both from a transparency perspective and by creating clearer precedents by showing the judicial reasoning. However, it also raises questions about what exactly the Supreme Court owes the public. The judiciary, as the branch that “decides what the law is” to quote the great Chief Justice John Marshall, was not designed to be accountable. In Federalist No. 78 by Alexander Hamilton, he editoralized that,

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.”[6]

This shows an original intent that the Supreme Court had to be able to stand against the democratic arms of the government when they were acting unconstitutionally. The Shadow Docket is uncomfortable to witness, but it does in a sense protect the justices from popular pressure over tough votes. A reasonable person might ask exactly why a justice of the Supreme Court would care about popular pressure; they serve for life or during the duration of their good behavior. There is a body of scholarship, however, that promotes the idea that the tendency of especially conservative justices to make uncharacteristic votes is in part an effort to win the respect of the educated elite in the media and legal profession, who skew somewhat liberal. In conservative organizations, for instance the Federalist Society, there is often talk of a “Greenhouse Effect”[7]. This is in reference to New York Times Supreme Court correspondent Linda Greenhouse, who is often perceived by conservatives as writing in a way to gin up pressure in the legal community on judges to vote in a generally liberal direction. An example of this is before the crucial Obamacare decision in King v. Burwell (2015) , ““[n]ot only the Affordable Care Act but the court itself is in peril as a result...The fate of the statute hung in the balance then and hangs in the balance today... this time, so does the honor of the Supreme Court” [8]. Assuming the Supreme Court is open to this kind of chiding (and that is the core assumption), these are powerful words. This idea was initially formulated by conservative economist Thomas Sowell, and has some adherence among jurists and judges.

The theory has critics. If there is such a thing as the Greenhouse Effect, it seems to exist very selectively for some progressive priorities and not at all for others. The Supreme Court through the entire 2000s has dealt major setbacks to antitrust legislation, environmental protections, and voting rights. Even liberal Justices like Elena Kagan and Sonia Sotomayor have been relatively business friendly [9], and of course the Supreme Court has not seen fit to prevent the reintrocuton of the federal death penalty. Commentators who say the Supreme Court is becoming increasingly liberal often only focus on issues like abortion or gay rights, whereas on economic issues or controvesies centered around racial policies (voting rights, affirmative action) the Supreme Court has shown itself very much restrained. The reason the Greenhouse Effect is worth mentioning in the context of the Shadow Docket is that in the event the Supreme Court has to be much more public in its decision making, then what will happen in effect is that it will become falsifiable to a much greater extent. Afterall, the pressure exerted by journalists and activists on the Supreme Court is only emotional, no effort has ever come even close to removing a Supreme Court justice. Eliminating the Shadow Docket would lead this emotional pressure to increase. The Greenhouse Effect hypothesis leads us to the conclusion that this will lead to a noticeable leftward swing at the high court. If this does not come to pass, we can safely say that the Greenhouse hypothesis lacks validity.

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1.Walsh, Mark. 2021. “The Supreme Court's 'Shadow Docket' Is Drawing Increasing Scrutiny.” ABA Journal. Accessed February 27. https://www.abajournal.com/web/article/scotus-shadow-docket-draws-increasing-scrutiny .

2. Sisak, Michael. 2021. Associated Press News. https://apnews.com/article/manhattan-prosecutor-trump-tax-records-87f675d7ae8e24fbf2e8f33c4 80869d6 .

3. Texas v. Pennsylvania (2020), Docket for 22O155. Accessed February 27. https://www.supremecourt.gov/docket/docketfiles/html/public/22o155.html .

4. Wermiel, Stephen. 2020. “On the Supreme Court's Shadow Docket, the Steady Volume of Pandemic Cases Continues.” SCOTUSblog. https://www.scotusblog.com/2020/12/on-the-supreme-courts-shadow-docket-the-steady-volume- of-pandemic-cases-continues/ .

5. Romoser, James. 2021. “Lawmakers Consider Nudging Supreme Court toward More Transparency on the Shadow Docket.” SCOTUSblog. https://www.scotusblog.com/2021/02/lawmakers-consider-nudging-supreme-court-toward-more- transparency-on-the-shadow-docket/ .

6. Hamilton, Alexander. 2021. The Avalon Project : Federalist No 78. Yale University. Accessed February 27. https://avalon.law.yale.edu/18th_century/fed78.asp.

7. Tolchin, Martin. 1992. “Press Is Condemned By a Federal Judge For Court Coverage.” The New York Times. The New York Times. https://www.nytimes.com/1992/06/15/us/press-is-condemned-by-a-federal-judge-for-court-cover age.html .

8. Andrews, Cory L. 2015. “Linda Greenhouse's Blatant Effort To Invoke 'Greenhouse Effect' In Affordable Care Act Case Fails.” Forbes. Forbes Magazine. https://www.forbes.com/sites/wlf/2015/02/06/linda-greenhouses-blatant-effort-to-invoke-greenho use-effect-in-affordable-care-act-case-fails/?sh=14d330382318 .

9.Richard A. Posner, Lee Epstein & William M. Landes, "How Business Fares in the Supreme Court," 97 Minnesota Law Review 1431 (2013)