The Shadow Docket

B.L.U.F.
An explanation of emergency dockets of the circuit courts and the Supreme Court with simple tie in to Duncan v. Bonta, the magazine ban out of California.
(1300 words)

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There is a process… There is always a process. How do cases get from here to there?

Once a case has been filed, the case moves forward. At different stages of the case, parties can appeal to the next higher court to seek relief.

There are two paths to the Supreme Court, from the state court system or through the federal court system.

Each state can have its own internal courts, but in general, there is a low-level court, an optional state appeals court, and then a state supreme court. For small states, they might not have a state level court of appeals.

From the state supreme court, the parties can appeal to the U.S. Supreme Court.

On the federal side, a case is filed in a district court. At different stages, the parties can appeal to the circuit court of appeals to seek relief. If they do not receive relief at the circuit level, they can appeal to the Supreme Court.

The Circuit Court of Appeals has two different docketing systems. There is the merits based docket and then there is the emergency docket.

While the parties might think that their particular case is time-critical, the courts do not see it that way. A party can place something on the emergency docket if the matter meets at least some of the Winter factors. These would be irreparable injury, balance of equity, and public interest.

As an example, if one of the parties will be executed at the end of the week, that is irreparable harm that requires a rapid decision. On the other hand, having to delay breaking ground on new construction for a few years is not irreparable harm. At the end of the process, you can be made whole by a payment of money.

What the court considers to be irreparable harm is not always known. Being denied a constitutionally protected right is considered irreparable as an example.

Each Circuit Court of Appeals has 3 or more judges on call as an administrative panel. When an appeal is filed on an emergency basis, a three judge administrative panel, or one of the on call judges, makes the first determination on the appeal.

The task of the administrative panel is to look at the pleading and determine if an administrative stay should be issued. The first such stay is generally to allow the other party to respond and for the initial party to reply to that response.

At this point, the administrative panel should have enough information to make a determination using the Winter factors. All four, merits, irreparable harm, balance of equities, and public interest.

Once this determination has been made, the administrative panel puts calendars the appeal on the merits docket.

The Supreme Court has an equivalent process. It is the “Emergency Docket”.

When a party thinks they can persevere on the Winter factors, including irreparable harm, they can appeal to the Supreme court. The case is then put on the Emergency Docket and assigned to a Justice.

Each Justice is responsible for one or more Circuit Courts. Any appeals coming from their circuit goes to that justice. Sotomayor is responsible for the Second Circuit Court of Appeals. Kagan is responsible for the Ninth Circuit.

As an example, No. 23A308 is a capital case. On Oct 9, 2023 the appeal was submitted to Justice Alito. The state of Texas is requesting that the Supreme Court allow an execution to go forward. The district court stayed the execution, the Fifth Circuit upheld the stay.

The murder requested the stay because he claims that DNA testing would prove that he didn’t really kidnap his victim after shooting her and would prove that it wasn’t him who dumped her body in the creek.

On the 10th, the state restated the reason the execution should go forward.

Also, on the 10th, the murder, through his lawyers, claimed that the stay was warranted.

Later the same day, Justice Alito referred the appeal to the Court. The three leftists, Sotomayor, Kagan, and Jackson, would have allowed the stay to continue. The other six justices agreed to allow the execution to proceed.

Start to finish, around 24 hours.

In a different appeal, No. 22A557, Antonyuk appealed to the Supreme court to vacate a stay on Dec. 21, 2022. This went to Justice Sotomayor. On the 27th, Justice Sotomayor ordered the state to file a response by Jan. 3rd. Antonyuk then replied to the response on the 5th. On the 11th, the application was referred to the Court. It doesn’t say “referred by Justice Sotomayor”. The tea leaves strongly suggest that this was forced by other Justices. The Court denied the application, but Justice Thomas wrote an opinion on the request.

Again very fast.

The Shadow Docket

The Supreme Court’s emergency docket has been renamed “The Shadow Docket” by people intent on delegitimizing the Court. Shadow Docket sounds sinister as compared to “emergency docket”.

Before there was a majority of Constitutionalist on the Court, the emergency docket wasn’t a big thing. It was just an administrative tool. If an emergency appeal was submitted to a justice and that justice decided not to refer it to the Court, it was the same as the Court denying the appeal.

How many times did this happen? I have no idea, but it obviously didn’t harm the pet cases of the leftist media.

Now it is much more likely that those pet cases are being submitted to a Constitutionalist. If that Justice doesn’t refer it to the Court, it is much more likely to go unheard.

The left is claiming that Justice Thomas is using his power over the “Shadow Docket” (scare quotes) to control cases that hare heard by the Court. This is bogus.

If a case is submitted to a Justice and that Justice does not refer it to the Court, the party can resubmit it to any Justice on the Court.

The law firm that is representing Virginia Duncan in Duncan v. Bonta has announced that they will be submitting an emergency appeal to the Supreme Court. This will be submitted to Justice Kagan. The odds of Justice Kagan not referring it to the Court are slim to none. There are just too many eyes on this case.

If the submission is done, I expect the Ninth Circuit to change the briefing schedule and oral arguments schedule to something much faster. Currently, the schedule for Duncan v. Bonta is: Appellant (state) opening brief is due 2023-11-21, Appellees (good guys) response is due 2023-12-21. The state’s reply is due 21 days later, around 2024-01-15.

Once the briefings are in place, the en banc panel will schedule the case for oral arguments. They will claim it will take them time to analyze the submitted briefs as well as go over the district court trial record. I don’t see them holding oral arguments before June 2024, as the case sits now.

When this emergency appeal hits the Supreme Court, I expect the Ninth to take a Lesson from the Seventh and schedule oral arguments for the middle to end of February, at which point the Supreme court might consider the issue moot.

Conclusion

The Supreme Court Emergency Docket is crucial. Because it is mostly filled with noise, during the 2022 term, they averaged more than 21 applications per week, it isn’t part of the normal calendar.

There is no complete calendar for the shadow docket.

Yesterday I found how to scrape the Supreme Court website for all cases on their dockets. From this, I can now monitor for when interesting cases hit the Court.

We will have to wait to see what happens in Duncan v. Bonta.

We live in interesting times.