Shadow Docket 2020-2021

In Supreme Court by Adam FeldmanLeave a Comment

After a short summer hiatus, The Juris Lab is back in action. This post looks at the portion of the Supreme Court’s cases that garners less press coverage – the shadow docket. These are cases where the Supreme Court does not rule on the merits but where a justice makes his or her vote in the case known. In particular, this post focuses on cases during the 2020 Term where a justice authored an opinion related to an order. The dataset includes 112 votes that range from statements respecting denial of cert to cases where justices would grant cert to dissents from denial of cert.

While the justices evenly divide their majority opinion assignments so all justices get near equal shares of cases, this is not the case with separate opinions. Separate opinions in the shadow docket are no different. Variation abounds when looking at the justices’ differential participation in the shadow docket this term. The graph below charts the number of votes in opinions relating to orders from each justice this term as well as the justices’ actions in these cases.

Justice Sotomayor was the most involved justice in the shadow docket this term. Her votes related mainly to dissents from denial of cert with a smaller fraction of her votes respecting denial of cert.  Justice Thomas was not far behind Justice Sotomayor with 15 votes compared to Sotomayor’s 16. Thomas had greater variety in his decisions with concurrences in judgments as well as instances where he made known he would have granted cert.

Another way to look at involvement in the shadow docket is by total pages authored. We can then compare pages authored with number of votes to see if these measures correlate.

Justice Sotomayor authored many more pages of opinions relating to orders than any other justice with 103 pages compared with Thomas who had the next most at 52. Justice Gorsuch had the next most at 29 pages with Kavanaugh and Kagan coming in next with 27 pages apiece. Justice Barrett had the fewest pages authored with only a page with her concurrence in South Bay United Pentecostal Church v. Newsom.

In many instances the justices do not make shadow docket decisions by themselves but rather align themselves with other justices. The following graph shows the justices’ alignments (or frequency of solo votes) from most frequent to least.

Justices Sotomayor’s and Thomas’ solo decisions were still the most frequent of the bunch. The most common grouping was the three most liberal justices on the Court – Breyer, Sotomayor, and Kagan. The next most frequent grouping of justices included Justices Alito, Thomas, and Gorsuch.  Some of the groupings were less predictable and cross-ideological such as the concurrence from Justices Kagan, Breyer, Sotomayor, and Barrett in Dunn v. Smith and the combination of Justices Sotomayor, Breyer, and Kavanaugh respecting denial of cert in National Coalition for Men v. Selective Service System.

Finally, we can examine the justices’ decisions by issue area.

Justice Sotomayor’s votes were mainly in death penalty cases with a large share also in Covid related decisions. Thomas had an even spread between Covid decisions, First Amendment, and immunity related decisions. Justice Kagan also had a large share of votes in Covid related decisions. Several of the Covid related cases could also be classified as election or religious liberty related cases including the aforementioned decision in South Bay United Pentecostal Church v. Newsom.

This analysis helps shed light into the Court’s business this term that often went under the radar. This term was quite unique as it involved both a presidential election and took place during the height of the Covid-19 pandemic.  While these may be anomalies, they also presented other instances for the justices to both vote alongside one another and to make their voices and opinions known. As these decisions are an important part of the justices’ work each term, they along with the Court’s merits docket present a more complete picture of the justices’ business across each term.

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