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Unprecedented Times Call for Quick Precedent From the Supreme Court’s “Shadow Docket” By Steven E. Kish, Howard & Howard Attorneys PLLC
Steven Kish is a general litigation associate at Howard & Howard. Before joining the firm, he clerked for Hon. James C. Mahan in the U.S. District Court for the District of Nevada. In law school, Kish competed nationally on Boyd’s moot court and mock trial teams, externed with the Clark County District Attorney’s Office, and worked with Nevada Legal Aid through the Partners in Pro Bono Program.
As the old adage goes, “the wheels of justice grind slowly, but they grind exceedingly fine.” Civil cases resolve after a little more than two years—a median of 27 months—from when they are filed in U.S. district courts. The appellate process takes months or years thereafter.1 Meanwhile, COVID-19 has killed over 650,000 people in the United States.2 The slow-moving judicial system, deliberative as it is, seemed illequipped to face the pandemic’s dynamic regulatory and legal landscape. The “shadow docket” has provided litigants with a more expedient path to Supreme Court review during the COVID-19 pandemic. But now we are left with the question of the precedential weight that these shadow docket cases and opinions should be afforded. The juxtaposition of the ever-changing regulatory landscape in response to the COVID-19 pandemic visà-vis Supreme Court review is underscored by Justice Kavanaugh’s concurrence in Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al. In his one-paragraph opinion, Justice Kavanaugh joined Chief Justice Roberts and Justices Kagan, Sotomayor, and Breyer to uphold the eviction moratorium. The reason? “[T]he CDC plans to end the moratorium in only a few weeks.” Thus, Justice Kavanaugh’s opinion demonstrates the importance of timing when challenging and seeking review of these policies. Although his was the deciding vote to keep the eviction moratorium in place, Justice Kavanaugh went a step further: He “agree[d] with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”3 Accordingly, Justice Kavanaugh’s concurrence evinces a willingness to address the merits of an underlying action, particularly in response to the COVID-19 pandemic. But there is an even more expeditious path to Supreme Court review. Injunctive relief has offered litigants a fast pass to the High Court by way of the so-called “shadow docket.” The shadow docket is the part of the Supreme Court’s docket in which the Court
issues orders without argument and often truncated briefing.4 For instance, Alabama Association of Realtors was submitted to the Court at the beginning of June; a decision followed within the month. While the onemonth turnaround is notable, the COVID-19-related cases decided on the shadow docket were even more swiftly decided. The shadow docket allowed California litigants to quickly bludgeon COVID-19 restrictions on religious gatherings, as the Supreme Court sided against Governor Newsom on five separate occasions over only three months. Although orders from the shadow docket ordinarily involve only procedural matters, emergency injunctive relief is handled on the shadow docket, where litigants have increasingly used expeditious review to their advantage. Interestingly, shadow docket orders—usually devoid of in-depth reasoning and analysis—have increasingly gone beyond the mere grant or denial of injunctive relief. Instead, the Court has grappled with the substance and merits of the underlying action.5 COVID-19-related cases challenged restrictions on religious gatherings, issues of prisoner safety, business closures, and the election.6 In November 2020, litigants successfully enjoined then-Governor Cuomo’s restrictions on religious gatherings.7 The five successful challenges to Governor Newsom’s COVID-19 policies built on Roman Catholic Diocese, beginning with the Court’s Feb. 5, 2021, decisions in Harvest Rock Church v. Newsom and South Bay Pentecostal Church v. Newsom.8 The plaintiffs’ success before the High Court continued on with Gish v. Newsom on Feb. 8 and Gateway City v. Newsom on Feb. 26.9 The Court’s repudiation of Newsom’s COVID-19 policies vis-à-vis religious gatherings culminated in the April 9, 2021, opinion in Tandon v. Newsom.10 Of the two Feb. 5 decisions, South Bay was the more substantive. Indeed, the justices’ positions in Harvest Rock were based on their respective decisions in South Bay.11 In South Bay, the Court enjoined a prohibition against indoor worship—while denying the application as to a 25 percent capacity limit and a November/December 2021 • THE FEDERAL LAWYER • 19
