Supreme Court's Shadow Docket Scam Collides With Reality - Above the Law

"The shadow docket used to be the sleepy part of the Court's work. The ramifications for the individual litigants were still tremendous, of course, but the Court's unexplained rulings on half-argued cases remained confined to the caption itself. These days, it's the Supreme Court's main stage, an opportunity to rewrite long-standing precedent through a process barely a notch removed from advisory opinions."

"While once limited to glorified preliminary injunctions, the Supreme Court's conservative majority has recast the shadow docket as an avenue to upset the status quo and award the administration victories that plaintiffs have no hope of seeing repaired. Unlike keeping some middle manager sidelined, the result of shadow docket decisions over independent agency leadership, the Court's order renders the legal landscape impossible to later untangle."

""In a nutshell, the trilogy appears to stand for the (new) proposition that courts not only may, but must, consider the possibility that a party is likely to prevail even if the governing precedent is squarely to the contrary-if it's a case in which the Supreme Court is likely to overrule that precedent. In other words, courts are now under an obligation to issue equitable relief even in contexts in which they're not allowed to rule for th"

The shadow docket shifted from a sleepy mechanism for preliminary injunctions to the Supreme Court's main stage, used to rewrite long-standing precedent through unexplained emergency orders. The conservative majority has repurposed the docket to upset the status quo and grant administrations victories that plaintiffs cannot later repair, destabilizing agency leadership and making the legal landscape difficult to untangle. The Court has begun treating hinted rationales in shadow-docket orders as superseding established precedent and pressuring lower courts to apply those implications. Observers describe the practice as ad-hoc or Calvinball jurisprudence and warn emergency procedures should not permit outcomes barred by settled precedent. Legal analysis indicates courts now face pressure to issue equitable relief even when governing precedent appears contrary.

Read at Above the Law