WASHINGTON — At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas; and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida.
Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning.
“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”
The orders were responses to emergency applications, and they were issued quickly, without full briefing or oral arguments (hence the “shadow docket”).
Compare the shadow docket with the court’s regular docket, the one with real briefs, arguments and elaborate signed opinions. On that docket — the “merits docket” — the court ordinarily agrees to hear about 1% of the petitions asking it to intercede. In its last term, it decided just 53 merits cases.
If the court is going to treat emergency applications with something like equal care, it might consider explaining what it is doing. Explaining, Judge Frank H. Easterbrook wrote in 2000, is what distinguishes judges from politicians.
“The political branches of government claim legitimacy by election, judges by reason,” he wrote. “Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.” Terse rulings on emergency applications are not new. But “the shadow docket has truly exploded in the last few years,” Stephen I. Vladeck, a law professor at the University of Texas, wrote on Scotusblog last week.
The Trump administration has been a major contributor to the trend, Vladeck wrote, having filed 36 emergency applications in its first 3 1/2 years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.
More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges.
Is it possible to trace some themes in the court’s election orders? Sure.
One is that Republicans tend to win. Another, as Justice Brett Kavanaugh wrote in a concurring opinion this month, speaking only for himself, is that “federal courts ordinarily should not alter state election rules in the period close to an election.”
He cited the 2006 ruling that has come to stand for that proposition, Purcell v. Gonzalez. Or perhaps “ruling” is too generous a word, as Purcell itself was an unsigned, cryptic, tentative and equivocal product of the court’s shadow docket. It has given rise to a “shadow doctrine,” Stephanopoulos wrote last month in an essay on Take Care, a legal blog.
The Purcell case concerned an Arizona voter ID law. A trial judge refused to block it, but, about a month before the 2006 general election, the 9th U.S. Circuit Court of Appeals issued an injunction forbidding state officials to enforce it.
The Supreme Court, ironically in light of where its own practices were heading, criticized the 9th Circuit for offering “no explanation or justification for its order,” and it let the election proceed with the voter ID law in force.
The passage in the Purcell ruling that has been boiled down to the shadow doctrine of a near-categorical bar on late-breaking adjustments to state election procedures by federal courts was three sentences long. It was not at all clear, but it suggested that judges should balance competing interests and use judgment.
“Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures,” the unsigned opinion said. “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
In an influential 2016 law review article, Richard L. Hasen, a law professor at the University of California, Irvine, coined a phrase for the way the passage has been caricatured, calling it “the Purcell principle.”
“The Purcell principle,” he wrote, is “the idea that courts should not issue orders which change election rules in the period just before the election.”
Stephanopoulos said the Purcell order did not support the Purcell principle. “It’s weird and indefensible to make Purcell a categorical rule against late-breaking judicial intervention,” he said. “No one can read Purcell itself and think it created the doctrine that it now has been transformed into by the Supreme Court.”
In his article, Hasen proposed a partial solution: The court should give reasons for its election rulings. If time is very short, he wrote, the justices can rule first and supply their reasoning later. (Last year, in a death penalty case, five justices explained their thinking six weeks after the court granted a stay of execution.)
Hasen gave three reasons for giving reasons.
“Reasons will help lower courts use the right standards in election cases, rather than having to try to read tea leaves from unexplained court orders,” he wrote. They will “bolster the legitimacy of the court in the eyes of the public, something especially important in controversial cases, such as election cases.” And they “may also discipline justices into deciding similar cases alike, regardless of the identity of the parties.”