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1A Remaking America: The Supreme Court, the shadow docket, and America’s trust

The US Supreme Court is seen in Washington, DC.
The US Supreme Court is seen in Washington, DC.

The shadow docket sounds like a bad movie from the 1940s. 

In real life, the phrase denotes the Supreme Court’s emergency decisions that are usually procedural and come with little explanation. 

But there’s growing concern that the docket is being used more often to make major rulings in private with wide-reaching consequences. Even some of the justices think so. Here’s part of what Justice Elena Kagan wrote in a dissenting opinion last fall: 

“Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. … The majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

How do the Justices justify the shadow docket? And what does a lack of transparency and Americans’ waning trust in the court mean for our democracy? 

This conversation is part of our Remaking America collaboration with six public radio stations around the country exploring Americans’ trust in institutions and the health of our democracy. Remaking America is funded in part by the Corporation for Public Broadcasting.

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