UMass Law Professor Dwight Duncan was recently featured in Massachusetts Lawyers Weekly in their new section entitled "Snap Judgments," which publishes the views of a number of Massachusetts lawyers on current legal issues. This week's question concerned the "shadow docket" of the U.S. Supreme Court, which in recent years has been used to decide substantive matters. Just this past summer, it was used to summarily restore the Trump rule about interning putative refugees outside the U.S. while their claims were being processed. Shadow dockets have also been used on other matters such as to overturn the CDC's moratorium on evictions, and to allow the Texas law restricting abortions to go into effect, while the challenge proceeds in court.
Mass. Lawyers Weekly interviewed Professor Duncan to ask the question: “In recent years, the U.S. Supreme Court has increasingly used its "shadow docket" to decide substantive matters. How big of a problem is this? If it is a problem, what can be done about it?” In response, Professor Duncan was quoted, “The U.S. Supreme Court’s shadow docket deals with emergency motions and cases without full briefing on the merits and recorded votes of the justices and their opinions. While there has been increased use recently due to a variety of factors from trial courts issuing nationwide injunctions, and administrations prone to deciding things by executive order, ultimately the Supreme Court can and will decide important matters in cases that are granted cert, fully briefed and argued.”