I’m excited to be part of the team kicking off the new Interim Docket Blog. For those who are new to tracking the Supreme Court’s work on the “interim docket,” you should read Jack’s inaugural post explaining what the interim docket is, and why we should call it that rather than the “shadow docket” or the “emergency docket.”  

In my kickoff post, I’d like to suggest something worth keeping in mind when you encounter someone criticizing the Court for its work on this docket, whatever one calls it.

To explain, I’m going to rely on the classic film Annie Hall (which I did on a Divided Argument episode recently).  At the beginning of the movie, Woody Allen begins with a classic Borscht Belt joke that he uses as a metaphor for life:

There’s an old joke. Two elderly women are at a Catskill mountain resort, and one of ’em says, “Boy, the food at this place is really terrible.” The other one says, “Yeah, I know; and such small portions.” Well, that’s essentially how I feel about life: full of loneliness, and misery, and suffering, and unhappiness, and it’s all over much too quickly.

I think this captures something important about current debates over the interim docket—particularly, criticism that tends to use the ominous “shadow docket” label. The Court gets a lot of flak for how it uses the interim docket procedurally: It acts too quickly and provides insufficient explanations of why it’s doing what it’s doing. Call this the “small portions” problem. At the same time, many critics strongly dislike the substance of what the Court is doing via interim orders—what you can think of as the “terrible food” problem.

What’s important to see is that, much like the elderly women’s restaurant review, there’s a certain schizophrenia to these criticisms. People don’t like the decisions the Court is making, and want the Court to offer longer and more thorough explanations of those decisions. Now, one can believe both critiques simultaneously. If the Court is doing things that are substantively problematic, maybe it owes us all more of an explanation when it does so. And I believe both are true in some instances—there are things the Court is doing that deeply trouble me and cause real-world harm, and I’m also troubled by the Court’s seeming flippancy in doing some of those things on a rushed timeline with little or no explanation.

It’s also possible that there’s a direct relationship between the two problems. As Steve Vladeck notes in pushing back on the “interim docket” label, often the Court’s interim rulings are effectively, if not formally, final—such as where the Court stops a lower court from staying a deportation order. Perhaps in some such cases, having to go through the full process of briefing, oral argument, and a lengthy opinion might actually lead the Court to decide an important issue differently. I’m somewhat skeptical that this would happen much, if at all, but it’s a reasonable argument.  

But sometimes “shadow docket” criticism may be more grounded in substantive, not procedural, disagreements with what the Court is doing. When the Court inevitably overturns Humphrey’s Executor in the Slaughter case, it’s going to get roundly criticized. And the fact that the Court previously granted a stay on the interim docket allowing the President to remove Rebecca Slaughter from the FTC, in violation of statutory law, will not figure prominently in those criticisms.

The lesson is that when you read or hear criticisms of the Court’s interim orders, ask what you see as the problem: substance, procedure, or both (or neither). If the Court were being slower and more deliberate, would the Court’s decision be equally problematic? Or is there a particularly distinct procedural problem that makes the “shadow docket” criticism especially apt in a particular case?

Welcome to the Interim Docket Blog, where Will Baude, Dan Epps, I, and surely others, will comment on Supreme Court interim orders and related matters.

An interim order is a non-final judicial decision that determines which party’s position controls in the interim between the filing of a lawsuit and its final resolution. That sounds boring and technical—and it is. But interim orders are where much of the action has been at the Supreme Court this year and for the last decade.

Consider executive power. The Court has a few important presidential powers cases on its merits docket. But it has issued dozens of interim orders this year related to presidential power, the vast majority of which the Trump administration has won.  (Many of the wins did not turn on the scope of presidential power but rather ruled that executive action was being challenged in the wrong venue or by the wrong plaintiffs; but these rulings have supercharged the administration’s efforts to incapacitate the bureaucracy nonetheless.) 

Interim orders are not decisions on the merits. But they can be hugely consequential.  Continuing with the presidency example, they determine whether an executive branch program can operate, or not, during the months or years it takes for final resolution of a case.  They often indicate the Justices’ views of the merits and thus preview how the case will eventually be decided. Sometimes they resolve an issue finally as a practical matter.  And they can exert a magnifying stare decisis influence on lower federal courts despite typically containing very little explanation.

In short, interim orders—especially but not exclusively for issues of executive power—have emerged as a track parallel to merits decisions for the practical resolution of important federal questions. Yet interim orders tend to be harder to understand than merits decisions due to the paucity of explanation, the technical rules that govern their issuance, and their underlying complexity.  

When a plaintiff challenges a presidential executive order, for example, it typically seeks an injunction in the district court. If the court grants the injunction, the government typically asks the court of appeals to “stay” it—that is, to suspend the order’s enforceability. If the court of appeals grants the stay, the plaintiff can ask the Supreme Court to vacate the stay; if it declines to grant it, the government may ask the Court to do so. Many other sequences can occur—for example, the district court denies injunctive relief, the court of appeals grants it, and the Supreme Court then stays the injunction.

One aim of this blog is to make interim orders more accessible and to situate them in the larger context of the Court’s work.

A final word on terminology.  Interim orders are sometimes referred to as “emergency” orders.  I explained in a recent essay why I thought this was misleading:

The “emergency” label, which connotes an urgent need for decision, misleads. Applicants sometimes characterize a request for a stay or injunction as an “emergency.” But often they do not. The tests for granting or vacating a stay or injunction do not fluctuate depending on how quickly the parties claim to need resolution. And the Court is under no compulsion to resolve the applications quickly. Sometimes it does, but often it takes a long time.

An example of the Court taking its time: The Solicitor General applied for a stay of the Illinois federal court’s National Guard injunction on October 17.  After receiving an initial set of responses, Justice Barrett requested a round of supplemental briefing on October 29.  That briefing closed on November 17.  And as of this posting, still no decision—though it should come any day.