Workshop on West’s “Taming the Shadow Docket”

E. Garrett West, Taming the Shadow Docket.

Solum’s Download of the Week for July 5, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5329091.

This is a synthetic academic workshop generated using enTalkenator (Workshop Hot Bench template, using Gemini 2.5 Pro).

Abstract: “The Supreme Court's shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This paper identifies comprehensive structural reforms, all within the Court's control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, States, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the APA; and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.”