Updated at 9:35 a.m. ET on March, 10, 2021.
A little after 8 p.m. eastern time on Friday, February 26—a time when people were logging off for the weekend, parents were putting kids to bed, and the last thing on anyone’s mind was the Supreme Court—the justices issued their latest in a series of controversial orders blocking local and state restrictions on indoor religious services. Like most of the Court’s prior actions in COVID-19 cases, the order in Gateway City Church v. Newsom was unsigned, unscheduled, and (mostly) unexplained. In freezing regulations in Santa Clara County, California (a step that two lower courts had refused to take), the order cryptically explained that such a result was “clearly dictated” by a similar order that the Court had handed down in a challenge to California’s statewide rules three weeks earlier—an order that was itself given without any majority rationale. Even though Santa Clara County had explained at some length why its restrictions differed from the state’s, an unnumbered majority of justices tersely responded that the lower courts’ decisions were “clearly erroneous” because they had failed to properly decipher the meaning of the Court’s earlier unexplained action in a different case about a different set of restrictions.
This confusion is the product of the so-called shadow docket, a term coined by the University of Chicago law professor William Baude in 2015 to capture the work that the justices do in cases that have not yet been (and may never be) argued on the merits. Although the phrase is relatively new, justices or the full Court have, since the Court’s beginning, issued orders to control their caseloads—and for most of the Court’s history, doing so has been entirely uncontroversial. That’s because an overwhelming majority of these rulings are anodyne—giving parties more time to file a brief, allowing interested nonparties to file briefs as “friends of the Court,” lengthening oral arguments, and so on. As Congress, from 1925 to 1988, gradually but consistently gave the Court more control over its docket, these case-management orders were joined by more significant decisions regarding whether to grant certiorari—the means by which the justices decide whether to take up a case for plenary review. Even then, though, the norm is to preserve the status quo—to deny certiorari. (The Court grants roughly 1 percent of the 6,500 petitions it receives each year.)* And in the few cases in which the Court agrees to hear the appeal, those orders don’t themselves do much; rather, they are a promise of further review—an additional round of briefing, an oral argument, and, eventually, a signed opinion from the Court.