The Shadow Docket and the Rocket Docket: Losing Fast and Slow

The Supreme Court granted certiorari to the Supreme Court in September Ramirez v. CollierI set up a very-expedited briefing agenda. In that moment, I was writing “The Justices moved the capital case from shadow docket into the rocket docket”. The context of the term “rocket docket,” I believe, was my first use. In the four-months since then, this term has become more popular as Justices choose to expedite several cases, rather than deciding the matter summarily. There are also RamirezThe Court placed the S.B. 8 cases were placed on the rocket docket. Similar treatment was given to the COVID mandate case. The Justices showed that they are capable of resolving high-profile cases within a short time frame. This experiment was, in my opinion, a great success.

How did we get to this point? In my opinion, the Court created the rocket docket as a response to public criticism of the shadow docket. Justice Kagan opposed the shadow docket during her hearings. Whole Woman’s Health I dissent. And, Justice Breyer used the phrase in an interview.

Whole Woman’s HealthII NFIBConservative Justices followed a process of deciding against progressive policies. These were final rulings on all the merits. Even more important, these were full rulings on the merits.

Do the critics of shadow docket feel satisfied? Consider all the possibilities. What is the Biden administration? ReallyYou would prefer? One paragraph shadow docket entry that would not affect the OSHA mandate. A 9-page opinion which adopts a strict reading of the major question doctrine and restricts federal power. What would you say to the providers of abortion? Really Would you prefer? An unbroken shadow docket order which denied stay? A lengthy opinion approving the reasoning of S.B. 8 allows states to carbon copy the method?

Losing can be a devastating experience in many different ways. FastIt is better to lose on the shadow docket than it is to be in the spotlight SlowThe rocket docket. A strong argument in support of the shadow docket says that Courts can not set precedents in a hurry. Unexplained summary orders would not apply in every case. However, once the case has been briefed and is argued, an opinion will set a new precedent.

After this term I believe that criticisms of the shadow docket are gone.