Shadow voting on the shadow docket

Nuts and Bolts is a recurring series by Stephen Wermiel providing insights into the mechanics of how the Supreme Court works.

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When is a vote not a vote? This might seem like a trick question, but it is not. The answer is that on the Supreme Court’s emergency or “shadow” docket, the votes are not always what they may seem.

The shadow docket has generated much current controversy and debate. The term refers to the requests for relief that the justices receive that are handled separately from the court’s usual merits docket process of granting review, receiving briefs from all interested parties, listening to oral argument, and issuing full written opinions signed by those in the majority and, when appropriate, in dissent.

When the justices decide a case on the merits, the votes of all nine are generally recorded in the court’s official syllabus, showing who joined some or all of the majority opinion and who wrote separate concurring or dissenting opinions. Indeed, some justices pride themselves on this transparency. Now-retired Justice Stephen Breyer was fond of saying that there was no behind-the-scenes story at the Supreme Court, that the opinions and the votes were the whole story.

Not so with the shadow docket. Whether by custom or policy, when the justices vote on emergency applications, their votes are not always apparent unless they can be deduced from the court’s order. To see how this works, consider some recent examples.

On July 23, the justices granted an emergency stay that allowed President Donald Trump to fire the three Democratic-appointed commissioners on the five-person Consumer Product Safety Commission. The 25-line order in Trump v. Boyle relied on similar, earlier orders allowing Trump to dismiss officials from other federal independent agencies, like the National Labor Relations Board. The order was on the shadow docket because it was only an interim move while the legality of the firings were still being litigated in the lower courts.

In the CPSC case, there are three documents: the unsigned order, a one-page concurring opinion by Justice Brett Kavanaugh, and a three-page dissenting opinion by Justice Elena Kagan joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

It would thus seem obvious that it is a 6-3 ruling.

But according to Supreme Court custom and practice, we cannot assume that all six justices who were not part of the dissent voted in the majority. We know from the Supreme Court’s rules that it takes five votes to grant a stay, as the court did in the CPSC case (a federal judge had temporarily blocked the firing; the Supreme Court stayed that order, allowing the firing to proceed). Since the stay was granted in Trump’s favor, there must have been five votes in the majority. But as a practical matter, we do not know if there were six because the votes are not publicly recorded.

This allows for some statistical mind games. If, for example, a stay were granted, and there were four dissenters, we could safely deduce that the vote was 5-4 because there had to be at least five votes to grant the stay. If a justice publicly noted that they did not take part in the case and a stay were granted with three dissents, we could conclude that the vote was 5-3 because, again, there had to be five votes for the stay to succeed.

To bolster the point, consider another example. On July 8, the Supreme Court issued another emergency stay in Trump v. American Federation of Government Employees, allowing the president to have federal agencies proceed with plans to lay off tens of thousands of federal workers. As typical in emergency docket cases, the order is unsigned. In this instance, Sotomayor issued a brief opinion agreeing with the court’s stay. Jackson wrote a solo 15-page dissent. Was the vote 8-1 in favor of the stay? Did the usually liberal Kagan join the majority? There is no way to be certain whether all eight justices voted to grant the emergency request.

Why does this matter? There is already much debate about the shadow docket. The focus of that debate includes several issues: that instead of simply deciding emergency procedural matters, the court is making new law on immigration, executive power, freedom of religion, health care, and more; that the emergency orders lack explanation; that shadow docket rulings do not provide adequate guidance to lower courts.

Add to that list the lack of transparency as to how the justices voted and whether all nine of them participated. The process of Supreme Court litigation operates on and benefits from knowing how justices view an issue and why, enabling lawyers to strategize how to make the best and most effective arguments in future cases. But on the shadow docket, basic information may be lacking as to how justices voted and why.

Equally curious, perhaps, is that there does not seem to be any explanation for this practice. The Supreme Court itself has a guide for the handling of emergency applications that is made available to the news media. It says nothing about the vote count practice. Respected legal scholars like Georgetown University Law Center’s Stephen Vladeck have noted that it is sometimes not possible to know the vote on emergency applications, but the origin and reason for it remain elusive.

Interestingly, it is also a relatively new phenomenon that we cannot assume the vote count unless it is explicit. Several decades ago, when it was only referred to as the emergency docket, the cases consisted largely of pleas for stays of execution from death row inmates facing imminent punishment. News reports on those cases typically reflected a vote. From the mid-1970s to 1990, news accounts reported the vote as 7-2 with the late Justices William Brennan and Thurgood Marshall routinely dissenting from denials of stays of execution; unless they picked up another vote, the tally was the same in each instance.

Fast forward to today. When the justices issued an emergency order on July 14 that allowed the president to fire more than 1,000 workers at the Department of Education, Sotomayor dissented, joined by Kagan and Jackson. But as has become the norm, the New York Times, among other news organizations, reported, “No vote count was given, which is usual for emergency orders.”