What Is a 'Shadow Docket'? Judge Jackson Questioned on SCOTUS Secret Tool

The U.S. Supreme Court keeps a secret tool in its back pocket, one that keeps getting brought up during the Supreme Court confirmation hearing of nominee Ketanji Brown Jackson.

Jackson, who will be making history as the first Black woman appointed to the Supreme Court if she is confirmed, was questioned on both Tuesday and Wednesday regarding the Court's use of a "shadow docket," but what is it?

Shadow docket is a term coined in 2015 by William Baude, a University of Chicago law professor, which describes when the court makes decisions in a very quick and unsigned manner, usually for the sake of flexibility or discretion.

Shadow dockets have raised concerns among politicians and scholars alike in recent years, and there have been calls for the court to stop using the shadow docket and instead make their work more visible to the American public.

On Wednesday, Democratic Senator Richard Blumenthal brought up the shadow docket in Jackson's confirmation hearing, saying, "What the people of America should know is there is no oral argument, there's only minimal briefing—there are no full opinions of the court."

Bringing his own chart to the hearing sourced to the SCOTUSblog, Blumenthal showed the decrease in signed decisions by the Court over the course of the last century as evidence that the Court issues several hundred fewer signed opinions now than it did throughout the 1900s.

"The Supreme Court needs to do its job," he said.

Blumenthal stated that the U.S. Supreme Court is "shirking its duty," and hopes that Jackson will "bring to the court the kind of responsible and methodical approach to decision-making that will lead to an avoidance of the shadow docket," he said on Wednesday.

On Tuesday, Minnesota Democratic Senator Amy Klobuchar asked Jackson her views on the use of the shadow docket, citing the court's attempt to stop Texas' six-week abortion ban last fall.

Jackson said that the decision on how and when to use the shadow docket is "a balance the court has to consider."

"On the one hand, it has always had an emergency docket; the need for flexibility, the ability to get answers to the party at issue is something that is important in our system," Jackson said. "On the other hand, the court has also considered the interest in allowing issues to percolate, allowing other courts to rule on things before they come to the court."

Jackson concluded by stating, "I am not privy at the moment to the justices' views on why and how they're using the emergency docket. If I was fortunate enough to be confirmed, I would look at those issues, but it's an interesting and important set of issues."

Newsweek reached out to political scientist Lonna Atkeson for additional comment.

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U.S. Supreme Court nominee Ketanji Brown Jackson is questioned about the shadow docket during Wednesday's confirmation hearing. In this photo, Senator Richard Blumenthal questions Jackson during her Senate Judiciary Committee confirmation hearing in the Hart Senate Office Building on Capitol Hill, March 23, 2022, in Washington, D.C. Drew Angerer/Getty Images