These decisions, often no longer than one sentence, are becoming disturbingly common.
The court’s “merits docket” includes cases in which the justices first decide to grant review, take full briefing , hold oral argument, and then deliver lengthy, signed opinions providing the court’s reasoning and resolving the case. In contrast, the “” consists almost entirely of summary orders, usually only one sentence long. These orders tend to be based on far less participation from lawyers, far less briefing, and no oral argument.
As the last month has driven home, the lack of attention distorts not only the public perception of the court but also our understanding of the ways in which the justices’ “shadow docket” rulings can affect our lives.
What’s more, we know that at least seven of the nine orders in these cases were decided 5–4. And although it’s hard to account for every ruling on the shadow docket, two slices of the data underscore the uptick in both the frequency of such rulings and their divisiveness: First, in the Trump administration’s 3½ years in office, the justices have granted in the 16 years of the George W. Bush and Obama administrations combined.
Second, the shadow docket is quickly crowding out the merits docket. During the October 2017 term , onlystay applications provoked four justices to publicly note their dissents. In the not quite two terms since, there have been 20 separate orders from which four justices publicly dissented—
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