Professor Barry McDonald, "SCOTUS'S Shadiest Shadow Docket" -- Wake Forest Law Review (forthcoming)

Professor Barry P. McDonald's article, "SCOTUS'S Shadiest Shadow Docket" (SSRN), will be published in the Wake Forest Law Review (forthcoming). The article examines the Supreme Court's handling of interim rulings and the justices' practice of issuing cert denial Opinions Related to Orders (ORTOs).

Abstract of "SCOTUS'S Shadiest Shadow Docket"

Recently, scholars and the media have been paying much attention to the Supreme Court's so-called "shadow docket"—its rulings on applications for interim relief from, or expedited review of, lower court decisions that are generally made without the benefit of full briefing, oral arguments or a written opinion of the Court. But an even larger part of the Court's shadow docket consists of opinions filed by individual justices relating to denials of certiorari in the large volume of petitions for review it receives each year. These opinions are called "Opinions Related to Orders" (ORTOs) on the Court's official website, and grouped together with individual opinions a justice might issue in connection with interim relief rulings.

While scholars and others have been critical of the Court's handling of interim rulings, the justices' practice of issuing "cert denial ORTOs" has largely escaped analysis. This Article fills that gap. It traces the evolution of the practice back to two justices who gained reputations as prominent civil and criminal rights defenders on the Warren Court—Hugo Black and William O. Douglas. It then describes how justices of the Burger Court took up the practice in a robust way, in one term issuing approximately 500 dissents to cert denials (including full ORTOs, summary dissents, and simple notations of dissent) despite the strong criticisms of Justices Felix Frankfurter and John Paul Stevens in opposition to the practice.

However, in the more conservative Rehnquist Court, the practice of filing cert denial ORTOs fell into relative disuse. But it will be described how it is becoming popular again on the increasingly polarized Roberts Court, mainly as a tool of pushing the respective ideological agendas of its conservative and liberal justices. Indeed, what used to constitute dissenting ORTOs explaining why the Court should have reviewed a case, are being replaced by ORTOs agreeing that certiorari was properly denied but nonetheless taking the opportunity to explain why the lower court got the law wrong or why the Court should correct or rethink its own precedent.

This Article contends that whatever value cert denial ORTOs might have in shedding some light on a justice's thinking or the Court's largely secretive deliberation processes, the practice suffers from at least three serious problems and should largely be abandoned. First, such ORTOs violate the modern Court's own view of the conditions necessary to exercising the Article III judicial power—the existence of a concrete case or controversy in need of judicial resolution. On this understanding, a cert denial ORTO is the epitome of a prohibited advisory opinion because it is issued in situations where the Court has expressly declined to take up case and render a judgment.

Second, since such ORTOs routinely stake out positions on legal questions likely to come before the Court in future cases, they violate the judicial independence and impartiality norms built into Article III. They also create serious tensions with federal law requiring judges to recuse themselves in cases where their impartiality might reasonably be in question. Lastly, they violate the collective decision-making norm and custom that has governed Court action since its inception, giving justices a vehicle for pushing their personal view of the law in situations where a supermajority of justices may well hold the opposite view given their decision to deny certiorari in a case. This problem is only exacerbated when lower courts cite to cert denial ORTOs, as they do in a surprisingly frequent manner, as persuasive or even controlling authority when deciding legal questions before them.