Finding Trump v. Illinois on the SCOTUS Webpage

What is the Status of a Major (But Hidden) Ruling?

Rulings on the Supreme Court’s “shadow docket” are so-called in part because they have often been hard to find. For example, in a 2022 post Steve Vladeck noted: “If you really know what you’re doing, you can find the Court’s ruling, but figuring out what (and where) it is often takes more than just a law degree.”

The logistical difficulty of finding these rulings is linked to deeper questions. Which documents are opinions, which are orders—and what exactly is their legal authority? The Court’s major ruling in the National Guard case Trump v. Illinois illustrates this continuing problem in an especially pointed way. The Court’s webpage seems to mislabel, or adopt contradictory views of, the justices’ ruling.

1. By way of background, consider three kinds of judicial action and how they are posted on the Supreme Court’s webpage.

First, per curiam opinions appear on the “Opinions of the Court” page and on the list of “Recent Decisions” posted on the Court’s homepage. See for example Pitts v. Mississippi, a summary reversal from November 24. These opinions are treated much like a normal merits opinion for the Court issued after plenary review.

Second, when the Court issues an order, one or more justices may write an opinion commenting on the order. These separate opinions appear on the “Opinions Relating to Orders” page on the Court’s webpage. See for example Hutson v. United States from November 17, wherein Justice Alito wrote a dissent from denial of certiorari, joined by Justice Thomas. On the docket page for that case, the final entry notes the denial of certiorari and the fact that Justice Alito filed a “Detached Opinion.”

Third, the Court sometimes issues orders that appear on the docket, without any attending opinion. The important April 19 order in AARP v. Trump is an example. The full text for the order — a meaty paragraph — appeared on the case’s docket page, with the promise of a related statement from Justice Alito to follow. Alito’s dissenting opinion was then noted on a separate docket entry and separately posted.

2. Now we reach what I regard as a problem category. What happens when the Court issues what looks like an authoritative opinion but does not style that opinion either as a signed majority opinion or as a per curiam opinion? This scenario appears to arise primarily in cases involving requests for interim relief.

The most recent example is the National Guard case, Trump v. Illinois. This ruling involved several statements: (i) a roughly three-page statement of legal reasons and conclusions that were apparently endorsed by the Court, (ii) a concurrence in the judgment by Justice Kavanaugh, (iii) a dissent by Justices Alito and joined by Justice Thomas, and (iv) a dissent by Justice Gorsuch.

One might expect that the text representing the legal views and conclusions of the Court would appear on the “Opinions of the Court” page, the “Opinions Relating to Orders” page, and/or the homepage’s list of “Recent Decisions.” At a minimum, one might expect such a consequential document to appear on the “Orders of the Court” page. The Court’s decision, after all, was quite important. It resolved the high-stakes case at hand, seemingly set precedent, and generated extensive commentary. Yet the relevant text was not listed anywhere on the Court’s webpage.

The “Opinions Relating to Orders” page did include three (and only three) related entries: one for each of the separate opinions filed by, respectively, Justices Kavanaugh, Alito, and Gorsuch. Yet, as the case’s docket sheet makes clear, there was also a “Detached Opinion” connected to the Court’s resolution of the case. To wit, the case’s final docket entry begins: “The application is denied. [See Detached Opinion for full order language.] (Detached Opinion).”

On its face, there is something strange about having a “Detached Opinion” that contains the Court’s “full order language.” These conflicting designations could be viewed as bordering on contradiction. Is the resulting unsigned text an opinion for the Court, an order, a hybrid, or something else?

Equally perplexing is a related question: where is the Court’s opinion/order posted? Again, it is not listed where the Court’s opinions or orders typically appear. Instead, there seems to be only one way to find it: by navigating to the “Opinions Relating to Orders” page and clicking on any one of the separate opinions filed by Justices Kavanaugh, Alito, and Gorsuch. To illustrate: if you click on the link to Justice Kavanaugh’s concurrence in the judgement, you get a single document containing the decision of the Court, with the other opinions immediately following.

So, to obtain the Court’s decision, you have to select something other than the Court’s decision.

Why not just publish the Court’s highly significant statement of reasons and conclusions as a per curiam opinion, or else list it separately under “Opinions Relating to Orders,” or (at the very least) include it under “Orders of the Court”?

3. From one standpoint, none of this really matters. Everyone seems to understand what is endorsed by the Court as such and how to find it — or, at least, sophisticates can figure out what is happening in the moment.

Even so, this arrangement is pointlessly confusing and potentially misleading. Again, someone looking at the “Opinions Relating to Orders” page sees three and only three listed opinions, none of which is the authoritative decision of the Court. Yet the only way of obtaining the Court’s decision is to select one of those opinions.

Could there be a legally significant difference between a per curiam opinion and an unsigned text that is labeled on the docket as a “Detached Opinion”? In the courts of appeals, unpublished opinions of the court are often deemed less than authoritative. By analogy, is a non-per curiam, unsigned “Detached Opinion” issued by the Court — such as the one in Trump v. Illinois — less than authoritative?

Could that possibility even underlie the Court’s ruling in Trump v. Boyle, which noted in part that “our interim orders are not conclusive as to the merits"? Boyle itself was an interim opinion/order discussing the force of a prior interim opinion/order. My post on “interim precedent” discussed various ways of understanding the legal force of these rulings. Should the options I outlined (or other options) depend on whether the Court’s statement of reasons and conclusions is styled as a per curiam, an order, an opinion relating to an order, or something else?

The fact that these questions have to be asked is reason enough to sort out the status of these documents and, relatedly, their location and designation on the Court’s website. This problem is not the world’s largest, but it is something that the justices can easily fix.

4. The confusion here stems from the rise of the shadow/emergency/interim/irregular docket. To some extent, the overall legal system, including the Court’s website, still hasn’t caught up with the justices’ rapidly evolving practices.