Deep in the Shadows?
The Facts about the Emergency Docket

Published in the Virginia Law Review-Online in 2023

Pablo Das, White & Case LLP
Lee Epstein, University of Southern California
Mitu Gulati, University of Virginia

The past few years have witnessed a particular accusation leveled repeatedly and loudly at the U.S. Supreme Court’s conservative super majority: that they are using the Court’s emergency (or pejoratively, “shadow”) docket to issue highly consequential decisions in a sneaky, secretive fashion.  Using data from the Court’s 2021-22 term and neutral methods, we analyze the entirety of the emergency docket .  The results show that conservative interests fare better on the emergency docket, just as they do on the merits docket—no surprise consider the Court’s political orientation. Unsettling as this may be from a liberal or legal-formalist perspective, there is little evidence that any of this is happening in the shadows.

Click here for the article
Click here for the data (posted on March 28, 2023)