The Lawfare Podcast Lawfare Archive: The Shadow Docket
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Apr 13, 2025 Stephen Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, dives into the controversial Supreme Court 'shadow docket.' He explores its origins linked to 1973 emergency orders and its rise in importance today. Vladeck discusses how these stealth rulings impact key issues like immigration and abortion, revealing the complexities and criticisms surrounding this opaque judicial process. He suggests potential reforms to enhance transparency and limit its unchecked power.
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Cambodia Bombing Case
- In 1973, Justice Douglas and Justice Marshall clashed over an injunction against bombing Cambodia.
- Marshall denied the initial application, but Douglas granted it after an appeal, leading to a complex legal standoff.
Supreme Court's Docket Control
- The Supreme Court evolved from mandatory jurisdiction in 1789 to almost complete control over its docket today.
- This shift, driven by figures like Taft, drastically increased the court's power and ability to shape legal principles.
Strategic Cert Denials
- Denials of certiorari are often seen as meaningless, but they can have significant strategic implications.
- The Obergefell case exemplifies how cert denials can effectively legalize same-sex marriage in several states.
