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The U.S. Supreme Court is operating in the shadows

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The "shadow docket" is a term used to describe the U.S. Supreme Court's practice of issuing rulings on emergency matters without the full briefing, oral argument, and written opinions that the cases on the Court's regular docket receive. This lack of transparency makes it difficult for the public to understand the Court's reasoning and to hold the Court accountable for its decisions.

The Court has increasingly used the shadow docket in recent years to decide a wide range of cases, including cases that have significant constitutional implications. This overuse of the shadow docket raises concerns about the Court's willingness to engage in the full and fair adjudication of cases.

The law community is calling on the Court to reform its use of the shadow docket. Some proposals include requiring the Court to issue written opinions in shadow docket cases, providing more time for briefing and argument in shadow docket cases, and limiting the Court's use of the shadow docket to emergency matters. It remains to be seen whether the Court will take steps to address the concerns raised by the law community.

There is growing concern with the current Supreme Court's increased use of the shadow docket because it can be used by the Court to issue rulings that are not supported by the law or that are based on improper factors, such as political considerations. This has been leading to the growing distrust of the Court. As the Court loses legitimacy, it is more difficult for the Court to uphold its role as an impartial arbiter of the law.

The shadow docket can be used by the Court to issue rulings that are unpredictable and that can have a significant impact on the lives of individuals and businesses. This can make it difficult for people to plan for the future and can lead to uncertainty and instability in the law.

Stephen I. Vladeck is the author of The Shadow Docket. He holds the Charles Alan Wright Chair in Federal Courts at The University of Texas School of Law and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Professor Vladeck has argued over a dozen cases before the U.S. Supreme Court, the Texas Supreme Court, and various lower federal civilian and military courts.

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*This interview will be recorded on Wednesday, June 7.

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David Martin Davies can be reached at dmdavies@tpr.org and on Twitter at @DavidMartinDavi