Legal Progressives Have Lost That Lovin’ Feelin’

The following is a condensed version of "Legal Progressives Have Lost That Lovin' Feelin'" by Mark Pulliam, published at Law & Liberty.

Liberal law professors used to love the U.S. Supreme Court. For half a century, they applauded activist decisions, proposed new theories of “noninterpretive” jurisprudence, and blew kisses to the Justices most responsible for steering the Court to the left—e.g., Earl Warren, William Brennan, William O. Douglas, and Ruth Bader Ginsburg. Then, abruptly, the Left’s devotion to the Court turned sour.

Seemingly overnight, liberals spurned the Court, reminding observers of the song You’ve Lost That Lovin’ Feelin’.  After decades of devotion, progressives have lost their “lovin’ feelin’” for the Court. As the song goes, “Now it’s gone, gone, gone.” Liberal Democrats are now questioning the legitimacy of the Court and proposing court-packing schemes, term limits for Justices, and other measures that were once the province of conservative critics of judicial activism. What happened? Stated succinctly, the composition of the Court has turned against progressives accustomed to having their way. To their considerable chagrin, President Donald Trump flipped the Court.

With the addition of Justices Gorsuch, Kavanaugh, and Barrett, the Court’s long-suffering conservative minority is now in charge. The reversal of Roe v. Wade in Dobbs last year removed all doubt that the tide has finally turned on the Supreme Court—and not coincidentally so has the tenor of scholarship from the legal academy. Like a jilted lover, the left-wing professoriate now holds the Court in scornful contempt. University of Texas law professor (and CNN analyst) Stephen Vladeck’s The Shadow Docket is a prime example.

Beginning with the book’s opening sentence, Vladeck complains about the Court’s reversal of precedents he holds dear (i.e., Roe v. Wade). His book, however, does not simply whine about the Court losing its liberal majority; Vladeck contends that something much more ominous is afoot. The book’s overwrought subtitle is How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. The target of Vladeck’s misguided attack is the Court’s use of unsigned orders (as opposed to formal decisions) to manage its docket. This longstanding practice is both necessary and unremarkable.

The “shadow docket” is an epithet sometimes used to refer to the Court’s disposition of procedural matters such as case scheduling, granting and vacating stays, ruling on so-called “emergency motions,” issuing injunctions, and even whether to hear a particular case on the merits. Such procedural dispositions are typically issued via “orders” without extensive briefing or oral argument, often do not set forth the reasoning behind the decision, and do not indicate the number or identity of Justices who voted in favor of the order. To the Court’s new-found critics, the “shadow docket” is a nefarious, secretive process rife with abuse.

But is the objection well-taken, or simply sour grapes over the Court’s recent personnel shift? The reality is, the Court has long conducted its business primarily through unsigned orders. Indeed, Vladeck has conceded that “the shadow docket has been around for as long as the Supreme Court.” In fact, the most important decisions the Court makes—which cases to decide on the merits—are handled in this manner. Only recently has the longstanding reliance on unsigned orders to manage the Court’s docket been called into question with the unsavory sobriquet “shadow docket.”

In a typical year, the Court—whose jurisdiction is, with a few exceptions, discretionary—receives between 7-8,000 petitions for certiorari (requests for review), and “grants cert.” in only about 80, or about one percent. The rest are summarily rejected, without oral argument or an explanation of reasons. In other words, 99 percent of litigants seeking relief from the Supreme Court receive an unsigned order denying review, with no further explanation. Vladeck doesn’t dispute these numbers.

There is simply no way nine Justices and their staffs could consider all 7-8,000 appeals on the merits. Keep in mind that the number of cases briefed, argued, and decided in the Supreme Court each year, with a full (and often lengthy) written decision, is generally between 60 and 80.

Congress’s granting the Court enormous discretion in its case selection (through certiorari) coincided with the rise of an activist judiciary, although liberal law professors uttered not a peep of complaint about the “shadow docket” until the recent advent of a conservative majority on the Court. In fact, Vladeck persuasively (and approvingly) suggests that the Court’s exercise of discretion to deny cert. in a series of same-sex marriage cases paved the way for the 2015 Obergefell decision. I don’t remember any denunciations of the “shadow docket” in that context.   

Justice Kavanaugh has complained about his dissenting colleagues’ “catchy but worn-out rhetoric about the ‘shadow docket.’” As the song goes, liberal Court watchers have “lost that lovin’ feelin’” and are now criticizing the “little things”—formerly overlooked-- such as unsigned orders. The overheated rhetoric about the “shadow docket” is nothing but sour grapes over the fact that liberal hegemony on the Court is “gone, gone, gone.”

Mark Pulliam writes from East Tennessee. A Big Law veteran, he retired as a partner in a large law firm after practicing for 30 years. A contributing editor to Law & Liberty since 2015, Mark also blogs at Misrule of Law. He considers himself a fully-recovered lawyer.