Publication of a trove of confidential Supreme Court memos ignited debates in the legal academy.
Hello! Over the weekend, The Times published “The Shadow Papers,” a look at a turning point in the Supreme Court’s use of its emergency docket by Jodi Kantor and me. The project, based on a trove of confidential memos from the justices, has engaged all kinds of readers.
Today, in a special edition of The Docket, I want to focus on what we have been hearing from law professors whose insights I have found most compelling.
Their reactions have been all over the map. Some said the article shed much-needed light on what critics call the court’s shadow docket, in which the justices use truncated procedures to issue consequential rulings with scant or no reasoning.
Other said we had merely confirmed their educated guesses about the reasons for an unsigned and unexplained 5-to-4 ruling in 2016 that halted President Barack Obama’s Clean Power Plan, which sought to encourage energy companies to move from coal to cleaner sources of energy.
I’m going to focus on the two professors most closely associated with the “shadow docket”: the one who named it and the one who wrote a book about it. They had very different takes on our article.
The Skeptic
Will Baude, a law professor at the University of Chicago and a former law clerk to Chief Justice John Roberts, coined the term “shadow docket” in 2015. In a blog post on Monday, he acknowledged that the court’s ruling blocking the Obama plan was “something of a big deal at the time, and that with the benefit of hindsight it can be seen as something of an inflection point.”