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The Supreme Court’s increasingly frequent use of its “shadow docket” – emergency rulings and orders issued without full briefing or argument – is generating meaningful confusion, even among legal experts. As one observer noted in 2022, locating these rulings can be so difficult that it “takes more than just a law degree.” This logistical challenge points to deeper questions about the nature of these decisions: are they opinions, orders, or something else entirely, and what is their ultimate legal weight?
Understanding the Court’s Different Types of Judicial Action
To understand the current problem, it’s crucial to differentiate between the Court’s various forms of judicial action and how they are published.First, per curiam opinions – rulings issued by the Court as a whole – appear on the “Opinions of the Court” page and are listed among the “Recent Decisions” on the Court’s homepage. These are treated similarly to standard, fully argued opinions.
Second, when the Court issues an order, individual justices may choose to write separate opinions commenting on that order. These opinions are published on the “Opinions Relating to Orders” page. For example, in Hutson v. united States (November 17), Justice Alito filed a dissent from the denial of certiorari, joined by Justice thomas, and this was noted as a “Detached Opinion” on the case’s docket.
the Court sometiems issues orders accompanied by a statement of reasons and conclusions. The situation is further complicated incidentally speaking the Court’s website directs users to find the ruling. the only way to access the Court’s decision is to navigate to the “Opinions Relating to Orders” page and click on one of the separate opinions filed by Justices Kavanaugh, Alito, or Gorsuch. Clicking on Justice Kavanaugh’s concurrence, such as, displays the Court’s decision alongside the other opinions. thus, to find the Court’s decision, one must select something other than the Court’s decision itself.
This arrangement is not only confusing but potentially misleading. Someone viewing the “Opinions relating to Orders” page would see only the three separate opinions, none of which is the authoritative decision of the Court. The current system begs the question: why not publish the statement of reasons and conclusions as a per curiam opinion, or list it separately under “Opinions Relating to orders,” or at least include it under “Orders of the Court”?
The unusual designation of these rulings raises concerns about their legal authority. Could a non-per curiam, unsigned “Detached Opinion” be considered less authoritative than a traditional per curiam opinion? This question is notably relevant given the Court’s ruling in Trump v. Boyle, which stated that “our interim orders are not conclusive as to the merits.”
The legal force of these rulings – often referred to as “interim precedent” – is a complex issue. The way the Court styles its statements of reasons and conclusions – as a per curiam opinion, an order, an opinion relating to an order, or something else – could influence how lower courts and legal scholars interpret their weight.
A System Struggling to Adapt
The root of this confusion lies in the rise of the “shadow/emergency/interim/irregular docket.” The legal system, including the Court’s website, has yet to fully adapt to the justices’ evolving practices. While some argue that those “in the know” can navigate the system, the current arrangement is unnecessarily complex and potentially undermines the clarity and accessibility of the Supreme Court’s decisions. This is a problem the justices can easily fix, and one they should address to ensure clarity and maintain public trust.
