The Irreparable Harm Argument

The Supreme Court has long had incredible authority to make decisions that affect millions of Americans. But in recent years, it has increasingly used its power to make stealth emergency decisions without public hearings or explanations. The cases that we often hear about on the high court’s so-called merits docket only represent about one percent of what the court decides. Since the mid-2010s, 99 percent of SCOTUS rulings, including ones increasingly related to consequential issues like abortion, immigration and COVID restrictions, have taken place on what some legal scholars have taken to calling “the shadow docket.” What does this obscure procedure mean for each of us? Steve Vladeck is the Charles Alan Wright Chair in Federal Courts at The University of Texas School of Law. He’s also author of a new book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” He joins WITHpod to discuss how we got to this moment, what the shadow docket means for the rule of law and strategies for ameliorating inconsistencies in the court’s process.