Let’s start off with the basics. How many U.S. Supreme Court Justices are there?
Was that harder than you expected? When the Court was founded, it only had six Justices. But over time, Congress flip-flopped on the number until they settled on nine Justices in 1869. The number hasn’t changed since then, but not for lack of trying. FDR tried to pack the Supreme Court, expanding it to 15 Justices — but his plan was foiled by Congress!
What do the Supreme Court decisions Brown v. Board of Education, Roe v. Wade, and Plessy v. Ferguson have in common?
These decisions were part of what’s called the merits docket. When the Supreme Court puts a case on the merits docket, they’re committing to the whole rigamarole. The Justices don their robes and sit in those fancy high-backed chairs to hear in-chamber oral arguments from each side. Then, they deliberate and issue their decision, with an explanation, to the public.
The vast majority of Supreme Court decisions play out a different way. They’re part of what’s called the “shadow docket.” Why do they call it that?
Typically, when the Supreme Court hands down a decision, there are pages and pages of legal jargon explaining their arguments. But in the vast majority of cases, the Court decides using what’s called the ‘shadow docket.’ In these decisions, Justices don’t always note which way they voted, or why. And sometimes, these decisions even come down in the middle of the night! Shadowy….
What kind of decisions are made on the “shadow docket”?
These “shadow docket” decisions represent the vast majority of the work the Supreme Court does! They might not make headlines and history books, like the glamorous merits docket decisions. But in recent years, they’ve become increasingly important – head to the next question and you’ll see why.
Which of these is something that a “shadow docket” decision made happen?
All of these policies (and many more) have gone into effect based on “shadow docket” rulings, even while their legality is still being worked out in the court system. Critics see this as evidence that the Court has too much power and not enough accountability.
When the Supreme Court was founded in 1790, the “shadow docket” didn’t exist. It developed later as the Court’s power and responsibilities changed. What was different about the Court at its founding compared to now?
Congress was a bit of a bully back then, and the Supreme Court just laid down and took it. In 1802, Congress canceled the Supreme Court’s entire session because of some beef between the Jeffersonians and the Federalists. But that’s gossip for another time…
The first major shift in the Supreme Court’s power came right after the Civil War, when the Court started having more discretion over the cases they hear. What happened in the wake of the Civil War that made this necessary?
Before the Civil War, the average American was like, “federal government, who??” After the war, the federal government and its power over Americans’ lives exploded. With that came a whole bunch of cases — which overwhelmed the Court. Congress gave the Court some powers of discretion so they could catch a break. (Although President Taft was a champion of building the Court’s power, and he DID get stuck in a bathtub…).
What is one way the Supreme Court acts in an emergency – when they can’t wait to spend months deliberating over a case – like when they had to rule on the legality of some state COVID-19 restrictions?
Emergency applications were invented so that Justices could resolve decisions temporarily, so they had time to go through the whole Supreme Court rigamarole. They’re considered part of the “shadow docket” because decisions can be unsigned and unexplained. Historically, emergency applications involved things like halting a prisoner’s execution while their appeal worked its way through the court system. But in recent years, some have accused the Court of misusing the emergency application process.
The US government has sometimes sought emergency relief – that means that they went to the Supreme Court asking them to intervene in a case that needed immediate action. But during which administration did the federal government ask for an emergency ruling 41 times?
Over the 16 years of the George W. Bush and Obama presidencies, the federal government asked the Supreme Court for emergency relief eight times. During Trump’s presidency, that number more than quadrupled. That led to backlash. Some have accused the Trump administration and the Supreme Court of using emergency applications as a strategy to let controversial or contested policies go into effect. Even some of the Justices said the Supreme Court had gone too far.
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