that these practices were useful for managing a large caseload and supervising the lower courts.[5] Subsequent scholarship has continued to address certain forms of summary or unsigned decisions,[6] and recently the phrase “shadow docket” has come into use as a catch-all term for the Court’s “orders and summary decisions that defy its normal procedural regularity.”[7]
In the past few years, many commentators have focused their attention on the Court’s increasing use of emergency orders,[8] especially in cases of public importance or controversy.[9] Several Justices have addressed the issue in recent statements, offering both critiques and defenses of this practice.[10] The Commission also received testimony and comments about the Court’s use of emergency orders. It should be emphasized that the concerns raised are not about the existence of emergency procedures—no one disputes that they are needed for true emergencies—but about specific aspects of their current use by the Court.
This section first examines three sets of concerns about emergency orders: limited process in high-impact cases; limited information about the Justices’ votes and the Court’s reasoning; and uncertain signals about a ruling’s precedential effect. This section then examines proposals from witnesses and commentators for changing current practices, including proposals addressed to concerns about emergency orders generally, as well as those specifically addressed to cases involving the death penalty.[11]
A. Limited Procedure for Important Cases
The Court’s recent emergency orders have involved issues of national importance and public debate, including abortion,[12] immigration policy,[13] environmental regulations,[14] and evictions during a surge in COVID-19.[15] Yet the Court’s practice in issuing such orders has involved relatively limited briefing, no oral argument, no norm that the Court’s reasoning must be publicly explained in a written opinion, and no expectation that the Justices’ votes will be revealed. Thus, a prominent line of critique has focused on the dissonance between the significance of many of the Court’s orders and the limited procedures that apply to them. Commentators initially focused criticism on orders that granted emergency applications seeking results contrary to those reached by the lower courts. More recently, following the Court’s first ruling in Whole Woman’s Health v. Jackson, which denied an emergency application that would have prevented a Texas abortion law known as S.B. 8 from going into effect,[16] critical attention has also turned to orders that deny such relief.
Although emergency orders technically are temporary and used in service of further adjudication, they often have the practical effect of being the final word on the issue. Since
