October 3, 2022

Volume XII, Number 276

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October 03, 2022

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Are the Shadows Lifting?: SCOTUS Today

There has been a good deal of recent attention given to the Supreme Court’s so-called “shadow docket,” a term that refers generally to the Court’s (conservative majority’s) issuing brief orders and unsigned opinions resolving procedural motions in a way that effectively disposes of cases, but without their having been fully briefed and argued.

The Court’s liberals, particularly Justice Kagan, and sympathetic commentators, have been increasingly critical of this practice.

Within the last few days, however, the Chief Justice joined Justices Kagan, as well as Justices Breyer and Sotomayor, in a dissent from the grant of a stay. Louisiana v. American Rivers on Application for Stay (April 6, 2022). Justice Kagan’s dissent accompanied an unsigned order granting a request from Republican-majority states and several industry groups to reinstate a Trump-era rule that hampers states and Indian tribes from blocking pipeline projects. The dissent focuses on what the dissenters believed was the deficiency of the petitioners’ claim of irreparable injury, a fundamental prerequisite for emergency relief.

What really is at issue here is that this “shadow” ruling foretells the outcome of the case.

With five Justices agreeing that the petitioners had demonstrated a likelihood of success on the merits, the ultimate disposition of this unbriefed, unargued case is beyond doubt. Critics of the shadow docket complain that this lack of transparency is harmful to the rule of law because there is only truncated participation by the parties and no opinion issuing to reveal the rationale for the ultimate decision. Others counter that this type of effective summary disposition is a useful economy and that courts, including the Supreme Court, often render judgments without opinions. This is a debate that will continue.

While Louisiana v. American Rivers is a case in which the Court has diminished the power of the states, Badgerow v. Walters, which recently was analyzed in this blog, enhances state court power. In Badgerow, the Court held that, under the Federal Arbitration Act, the federal courts were not authorized to “look through” an arbitration dispute for a federal cause of action to confirm or deny an arbitral award. This will substantially change how post-arbitration review is conducted by shifting more of the responsibility to state courts. It also should affect the way that arbitration claims are pleaded, if indeed a federal cause of action can be identified and pleaded.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 101
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About this Author

Stuart Gerson, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

STUART M. GERSON is a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices. Much of Mr. Gerson's practice has been centered on providing representation to clients in the health care industry (including insurers, hospitals, pharmaceutical manufacturers, managed care providers, and private equity funds, among others). He has extensive experience litigating cases involving the cybersecurity of health care information, trade secrets, and other confidential data as well as civil...

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