Shadow Docket Redux

Monday’s, per curiam in District of Columbia v. R.W. 608 U.S. ____ (2026) is yet another example of the use of the shadow docket to decide cases without taking the responsibility of issuing a signed opinion or doing the type of thorough analysis that one would expect from a full opinion after argument. It is noteworthy for the dissent by Justice Jackson which criticizes the fact that the Court saw “fit to intervene .  .  . let alone do so summarily.”  The per curiam opinion did not settle a rule of law, instead, it just rehashed the factual determination of the courts below.

The per curiam opinion in District of Columbia v. R.W. was issued on April 20, 2026,  two days after the New York Times bombshell report on the “birth” of the modern shadow docket.  The Times story was based on several memos between the Justices in February of 2016, involving an EPA regulation during the Obama administration intended to reduce carbon emissions.   The actual chambers memos are reproduced online at this link.  Of course, the shadow docket can be traced back much farther than that, perhaps to the 1942 unsigned order of July 31, 1942, preceding the opinion in In Re Quirin 317 U.S. 1 delivered October 29, 1942.  (See, Steven Vladeck, The Shadow Docket (Basic Books, 2023)). 

Whether the shadow docket was born in 1942 or 2016, it has become a major tool of the Supreme Court during the Roberts Court.  It has been used to summarily dispose of the underlying litigation or to change national policy dramatically while the underlying litigation continues in the lower courts.  Interestingly, District of Columbia v. R.W. did not announce new policy, it just rehashed existing policy to reverse the Circuit Court’s reversal of a denial of a suppression motion by the district court.  In the newly revealed February 2016 memorandum exchange regarding the use of summary action in response to the EPA regulation, Justice Breyer reminded Chief Justice Roberts that, “As we often say, ‘we are a court of review, not first view.’”  Yet, in District of Columbia v. R.W. the Court seemed to take on the role of a court of first view – or a court of error – rather than a court of review.