The Docket that Cannot Be Named
By Maureen E. Brady & Richard Re
It’s a question that most Supreme Court watchers are all-too-familiar with: What should we call the court’s expanded practice of ruling on cases in an unusually expedited fashion? We confronted this question a few months ago when organizing a panel on the topic. Available names abounded: the leading contenders are now shadow docket, emergency docket, and interim docket, but others in circulation include the equity, stay, lightning, non-merits, or irregular docket. Ever equanimous, we settled on: “The Docket That Shall Not Be Named.”
What explains the difficulty of converging on a name for this, well, unnamable docket? And what does the answer to that question tell us about how best to proceed in the naming wars? These questions strike at some of the central difficulties in our legal system at present – difficulties that are more cultural than procedural, and that stretch far beyond the marble palace at One First Street.
I. Explanations
The key question is descriptive: Why in fact is it so hard to agree on a name for this docket or set of judicial practices?
1. Different practices
Part of the difficulty is that we are trying to apply a single name to an evolving set of practices. When Will Baude coined the term “shadow docket” in 2015, he was talking primarily about summary reversals, which at the time were a significant if somewhat obscure feature of the justices’ work. These relatively marginal rulings typically involved a short opinion published without briefing or oral argument on the court’s “orders list.”
Although focused on summary reversals, Baude defined “shadow docket” very broadly, essentially encompassing anything other than plenary (full) review, even including certiorari denials. And so, that broad term came to cover an emergent set of practices over the last decade that it is worth disaggregating. There may be a need for more than a few names; the relevant docket, we might say, is a “they” not an “it.”
Before splitting the bundle, we might start with what could unify the set of practices to which these terms often refer. One potentially unifying characteristic is speed. Sometimes the justices have to act within days or even hours or lose jurisdiction, making the “emergency docket” seem apt; “lightning docket” or “expedited docket” have been used when the justices rush to decide the merits of the case before full proceedings. (Rocket docket is, regrettably, taken).
But speed alone fails to meaningfully capture some portion of what the court is doing. For one thing, not all the decisions on the docket are equally fast: the stay ruling in Trump v. CASA, which limited courts’ abilities to issue nationwide injunctions, involved oral argument and opinion-writing (though still no regular briefing). For another, focusing on speed alone misses important substantive dimensions of the court’s practice. Stay decisions, for instance, are doing something qualitatively different, not just faster than, the plenary docket – as evidenced by their distinctive standards of review and unclear precedential effect.
Two other candidates – lack of visibility and deviation from normal practice – suffer from similar problems. While perhaps the unnamable docket was once shadowy and behind-the-scenes, some decisions – like CASA – involved publication of a full opinion in the U.S. Reporter and at least as much attention as any other ruling that term. And while deviation from normal practice led one of us to see appeal in “irregular docket,” are these practices really still irregular, as they have become increasingly commonplace?
These issues could be a sign that we need not one name, but varied names for diverse dockets. For example, the “interim docket” by its terms seems to apply only to interim relief such as stays, and so is a narrower category. Perhaps certiorari, summary review, and stay practice are three distinct categories, tracking different procedures. Along those lines, the “equity docket” might aptly describe cases, including CASA, in which parties are seeking equitable remedies like injunctions or stays. This narrower framing isolates a discrete doctrinal question: how the equitable principles governing the various actions within the docket have become unclear or have shifted, at least according to many of the docket’s critics.
2. Different inquiries
Different names have different framing effects, helping indicate what practices should or should not be tolerated. Of course, people have divergent prescriptive reasons to favor one frame or another.
For example, calling it the “emergency docket” may make us assume the existence of an emergency. Proponents of the court’s behavior have sometimes desired that favorable framing. Justice Samuel Alito promoted that label several years ago, prompting critics to argue that he was inappropriately helping himself to a legitimate-sounding name. Who, after all, could be against handling emergencies?
Recently, however, Justice Ketanji Brown Jackson, a staunch critic of the court’s practices, gave a speech using the “emergency docket” term and asserting that there is no such thing as an “interim docket.” Her aspirational use of the term “emergency docket” supported her claim that the justices should issue the relevant type of relief only when there is a true emergency – not simply to override lower courts.
Or again consider the “shadow docket.” To be connected with shadows sounds spooky, nefarious, and exciting. Indeed, Baude picked the name partly to connote those sorts of qualities. His originally planned title was “Paying Attention to the Orders List,” but savvy advice from fellow scholar Justin Driver moved him toward a zippier moniker. Alas, branding, even (or especially) when brilliant, can also be misleading. Or so critics, including Justice Alito, have complained.
The “interim docket” label aspires to be more clinical and precise. Certain modes of relief do indeed relate to interim orders, as contrasted with final judgments on the merits. But whether to adopt a bland or technical approach is itself controversial. Critics of that term object that supposedly “interim” relief can be effectively conclusive. And they may be averse to bloodless discussion of lamentable rulings.
3. Different goals
Finally, it is a truism that different commentators and legal practitioners have sharply different legal and political opinions about these practices. It is hard to get consensus on anything in a polarized environment, and the naming issue bears out that problem.
The term “supreme Court” appears in the Constitution and so has been settled for a long time. But if we had to identify a name for the Supreme Court today, could we come up with one by consensus? Or would many people complain that “supreme” is either inaccurate or inappropriately laudatory – and is it even really a “Court”?
Some people might want to organize political movements around one or another term. Use of language can then mark people as belonging to opposing camps. Think for example of the difference between “undocumented immigrant” and “illegal alien.” Even our vocabulary may divide us. And how can there be compromise or consensus when the divisions are built into the very terms of conversation?
Some people may also have professional, reputational, or commercial interests in preserving certain terms, or in unsettling those terms in favor of others. Here too the logic of branding comes into play.
These dynamics are perhaps most obvious in connection with the justices themselves, who have an interest in either defending (if they are in the majority) or criticizing (if not) the court’s own work. Some years ago, for example, Justice Elena Kagan got on and then off the “shadow docket” bandwagon. Alito opposed that term and favored “emergency docket.” Justice Brett Kavanaugh just last year began to push the “interim docket.” And Jackson has recently sided with Alito and against both Kagan and Kavanaugh by embracing “the emergency docket.”
Perhaps the justices will hold a vote on the proper terminology.
II. A modest proposal: vive la différence!
Is there anything actionable to do, now that we have a better grip on why this set of practices is in fact so hard to name?
Perhaps we should be resigned to unnameability. Nobody can “make fetch happen,” and language may be above any of our pay grades.
Yet the natural drift of language has special costs in this context. First, if the mere choice of term reinforces team or tribal allegiances, it can obscure common ground or shared interest in compromise. More generally, the costs of imprecision and tribalism here may be inhibiting our capacity to see like cases alike or to clearly identify aberrations. Can we assess how discrete features of Supreme Court practices and standards are changing if our data set is so muddled?
To address that concern, we might try to avoid linguistic indicators of tribal allegiance. That is, we might construe the various “docket” terms as nonredundant and specialized, such that the various options can and should be used by anyone. If we endeavor to use many terms to mean discrete things, then perhaps we can reduce the odds of tribal organization around the use of language.
Accuracy and precision likewise point toward nominal pluralism and even fluidity. As we have seen, the court is doing several distinct things, its practices are in flux, and its activities can be assessed according to different criteria. In this context, it makes sense to embrace terminological diversity and dynamism.
For instance, “the shadow docket” may still work for some purposes, but it does not make sense as the one and only label for what we are talking about. The biggest problem with that singular term, in other words, is that it implicitly claims exclusivity – and so invites competing claims to terminological hegemony. That problem dissipates if we can remember that there are several overlapping “dockets.”
We might say that there are shadow dockets – plural – pertaining to certiorari, stays, injunctions, and other matters. And that there are also equitable dockets pertaining to stays and injunctions. And also emergency dockets regarding capital cases, certain stays, certiorari before judgment, and plenary rulings issued on an expedited schedule. No one choice of labels is categorically right or wrong.
These different terms might also help us separate different aspects or dimensions of what we are interested in. Are we focused on a decision’s speed, lack of visibility, deviation from settled practice, legal effect, procedural demands, or precedential import? (Perhaps there are still other types of “docket” yet to be coined.)
True, we may sometimes want a catchall term, for expressive convenience if nothing else. And for those occasions, we should choose a phrase that is a bit unstable and a tad self-aware. How about – “the unnamable docket”?
Cross-posted from SCOTUSBlog.