The Supreme Court Has a Secret Weapon to Quietly Make Decisions

The Supreme Court Has a Secret Weapon to Quietly Make Decisions

(TargetLiberty.org) – The US Supreme Court is the most visible court in the country, and it deals with high-profile cases regularly. Its judgments are widely reported and often discussed. But that’s only half the story. SCOTUS also has a much less visible way to make decisions – and it’s using it a lot more often than it has previously.

In addition to its usual well-publicized debates and decisions, the Supreme Court can use what a conservative law professor, William Baude of the University of Chicago Law School, has named the “shadow docket.” To activate this process, any litigant can ask a single justice to hear a case. That justice can then forward it to the full court – and if that happens, five justices voting in favor can grant the litigant’s request. Lawyers can file written opposition briefs, but there’s no oral argument and no comeback.

In a rare display of bipartisan unity, Conservatives and Liberals are both raising concerns about the shadow docket. Baude says “it’s hard for the public to trust that the court is doing its best work” when the court uses this secretive procedure. The American Civil Liberties Union legal director says if the court can make decisions without having to explain them, “there’s really no limit to what they can do.”

One of the principles the US stands on is that justice is open and fair – but what do we do when it isn’t?

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