As Will Baude has explained, in recent years the Roberts Court has turned to its “shadow docket” to resolve increasingly-important matters without argument, through cursory per curiam orders. Perhaps the most significant such shadow-docket entry was the Court’s decision on Tuesday to put on hold the final rule for the Clean Power Plan while the case is being litigated. (Jon Adler provides a detailed background of the rule). As best as I can tell, the Court has never granted such extraordinary relief while the case was being litigated in the Court below.
While this may be the first such order of its kind, it is something we may see more of in the future in light of the transitioning judiciary. From the period of 1980-1992, through three Republican administrations, the lower courts were filled with (generally) conservative jurists. Though there was eight years of Clinton afterwards, it was closely followed by eight years of Bush 43. In 2008, for the most part, the Circuit Courts were stacked with judges appointed by Republican Presidents, plus many senior-status Reagan and Bush 41 judges still hanging around. After eight years of Obama, those numbers have turned around. Many of the older Reagan and Bush 41 judges are slowly leaving the bench. This increases the percentage of Clinton and Obama judges on the federal courts of appeals. If the next President is a Democrat, with four to eight years, the judiciary will be saturated by Democratic-appointed judges in much the same way it was saturated with Republican-appointed judges in 1992.
If in fact this is what happened, the Supreme Court–which until there is a retirement maintains a quasi-conservative majority–very well may increase its role as a Court of error correction. No, I don’t mean error correction in terms of facts. I am talking about error correction in terms of panels that deviate from where SCOTUS thinks the law ought to be. Even before a Circuit Split has emerged, the Court may take action to quickly and promptly correct deviant Circuit Courts through the use of its shadow docket. The decision to grant the stay in the Clean Power Plan case may be an inkling of what may come next, as the Circuits begin to fall further away from the Court’s ideological middle. These short orders, which on their face simply seek to maintain the status quo, provide hints to the lower Court of how they ought to rule. After the Court’s stay, do you think the D.C. Circuit would get the picture that there are five votes to invalidate the Clean Power Plan? Will that even matter? Probably not. But these short orders on the shadow docket do serve an important signaling function–to the extent the lower courts care to follow their lead.