Publishers Weekly
02/13/2023
University of Texas law professor Vladeck debuts with an expert study of how the Supreme Court’s conservative majority has increasingly used “obscure procedural orders to shift American jurisprudence definitively to the right.” Unlike the “merits docket,” where justices issue lengthy, signed opinions months after hearing oral arguments, rulings handed down on the “shadow docket” are unsigned, unexplained, and often released in the middle of the night. Though the majority ruling in Dobbs v. Jackson Women’s Health Organization officially overturned Roe v. Wade, Vladeck points out that an unsigned order issued nearly 10 months prior effectively did the same thing—when the court refused to block a Texas law banning abortions after six weeks. Since 2017, shadow docket rulings have also kept restrictive voting laws in place, blocked Covid-19 vaccine mandates, and perhaps even altered control of the current Congress, by staying a series of lower-court decisions in redistricting cases, even though those decisions were consistent with existing precedent. Vladeck analyzes the most consequential of these shadow docket orders, revealing how they “run roughshod over long-settled understandings of both the formal and practical limits of the Court’s authority,” and calls for congressional action to limit such rulings. This insightful and accessible account raises an important alarm. (May)
From the Publisher
"[The shadow docket] has been something that lawyers have been talking about for a long time; it’s really important for all of us to understand it.” —Rachel Maddow
“Important…Vladeck is a conscientious guide through the legal thickets…With The Shadow Docket, Vladeck has taken it upon himself to translate the court’s deliberately cryptic orders and legal technicalities into accessible English.” —The New York Times
“Mr. Vladeck offers a fascinating chronicle of the shadow docket’s rise…The author’s skill as a law professor shines in thorough, clear explanations of how the court has run roughshod over its own jurisprudence in shadow-docket cases involving abortion, religious liberty and election law…the illumination in The Shadow Docket could help bring more principle, accountability, and ‘procedural regularity’ to the justices work —and help stop a controversial institution going completely off the rails.” —The Economist
“Vladeck offers a well-researched indictment of how the supreme court has grown to rely on using procedural orders rather than rulings to make new law, escaping scrutiny while delivering major victories to the political right…The Shadow Docket is comprehensive and sensitive to nuance, written for concerned audiences.” —The Guardian
“As a court observer, Vladeck is a phenomenon….The Shadow Docket is a work of profound respect for a Court he plainly loves…The Shadow Docket is an important book for anyone who wants a deep understanding of the way the post-Trump Court is moving to reshape the law. Vladeck is a clear and engaging writer.”—Washington Monthly
“People who care about the court and what it’s doing should read this.” —Poppy Harlow
“The most important recent book attempting to answer the burning question, ‘How did we get into this mess?’”—Esquire.com
"persuasive and timely...Critics of the current court will find much to ponder in Vladeck’s account."—Kirkus Review
“An expert study…. This insightful and accessible account raises an important alarm.” —Publishers Weekly
“In The Shadow Docket, Steve Vladeck tells an urgent story about an arcane aspect of American law that has momentous implications for a host of pressing political issues—and for the institutional legitimacy of the Supreme Court itself. In elegant, accessible prose, Vladeck exposes the degree to which significant battles, from abortion to immigration, are being adjudicated behind closed doors, in unseen, unsigned, unexplained decisions. This is a powerful work of argument and explication, and a call for a return to transparency and accountability in the decision making of our highest court.” —Patrick Radden Keefe, author of Empire of Pain
"The Supreme Court's polling numbers and legitimacy have taken a nosedive in recent years, but the cases it hands down are only part of the problem. The stuff that happens in the shadows is equally alarming, and nobody has been better at explaining these shadow matters than Steve Vladeck. Tackling intricate procedural questions, Vladeck makes absolutely plain that — to repurpose an old adage — procedure isn't just the handmaid of justice, it's now her lord and master. We ignore what happens in the shadows at our peril."—Dahlia Lithwick, author of Lady Justice
“Stephen Vladeck shines a harsh light on a little-understood SCOTUS sleight of hand — the shadow docket. Vladeck describes in clear and convincing language how the highest court in the land has increasingly used obscure procedural orders to shift the legal landscape to the right, at the expense of transparency, precedent, and fundamental rights. It is vital reading.”—Preet Bharara, former U.S. Attorney for the Southern District of New York
"Steve Vladeck uses his intimate knowledge of the Supreme Court to show how the conservative justices are manipulating the court's docket to maximize their power and achieve their desired outcomes. The Shadow Docket is essential reading for anyone who wants to understand how today's court really works."—Linda Greenhouse, author of Justice On the Brink
“The best thing you can say about a Supreme Court book is that you learned something, and I learned a ton. Vladeck cogently describes the perhaps well-meant but insidious way that the Supreme Court, in liberal as well as conservative times, slowly eroded the legal levers that prevented the Court from engineering its own agenda.”—Nina Totenberg, award-winning legal affairs correspondent, NPR
Kirkus Reviews
2023-06-07
A legal scholar examines and cross-examines a Supreme Court increasingly given to secrecy.
Vladeck, CNN’s Supreme Court analyst and a professor at the University of Texas School of Law, argues that the court has increasingly delivered its rulings by means of the “shadow docket” of his title, unsigned orders with no position or legal analysis attached and comprised of shorthand language—e.g., “the application for injunctive relief presented to JUSTICE SOTOMAYOR and by her referred to the Court is granted,” or “the application for a stay presented to JUSTICE ALITO and by him referred to the Court is denied.” Sometimes this means that the court lets lower rulings stand, but sometimes the unsigned order is a way of sidestepping the fraught matter of actually rendering a concrete decision. Occasionally, it’s a way of enforcing unpopular legal rulings without attaching responsibility, with plenty of attendant ironies. For example, Justice Amy Coney Barrett, appointed by former President Donald Trump, has demanded that critics read the arguments that would ordinarily be included on a “merits docket” only to issue most decisions in those bland one-sentence utterances. Even the website offering transcripts of the justices’ public speeches hasn’t been updated in years (the most recent entry is from August 2019). By Vladeck’s account, not only is the court withdrawing itself from public accountability, but it is also making decisions that properly belong to the executive and legislative branches. The author often writes in language requiring legal training to fully understand—“In general, although denials of certiorari therefore cannot be cited as proof of the Supreme Court’s views on any particular issue, they regularly produce significant substantive effects by changing the status quo on the ground”—but his arguments against the walled-off court are certainly persuasive and timely.
Critics of the current court will find much to ponder in Vladeck’s account.
