The Shadow Docket by Stephen Vladeck

Author:Stephen Vladeck [Vladeck, Stephen]
Language: eng
Format: epub
Published: 2023-05-16T00:00:00+00:00

Footnotes

i When she became the first woman to serve as solicitor general in 2009, Elena Kagan (who thought the woman’s version of a morning coat looked “ridiculous”) is said to have received the justices’ approval, through intermediaries, to argue in a business suit.

ii Stare decisis means “to stand by things decided” in Latin. It is the principle that, all things being equal, courts will—and should—follow their precedents, and should overrule prior decisions (even those with which the current court disagrees) only in rare and exceptional circumstances.

iii To underscore how long the Court sat on the emergency application in the mifepristone case before granting it, during the same time period that the government’s application remained on the docket, the justices (1) agreed to conduct plenary merits review of a dispute over whether reapportionment data provided by the secretary of commerce could exclude undocumented immigrants; (2) received full briefing from the parties and numerous friends of the Court; (3) heard oral argument; and (4) handed down a decision on the merits. That whole process took eighty-seven days.

iv The Supreme Court has long recognized that, when an appeal becomes moot while it is still pending through no fault of the party that lost below, it would not be fair to require that party to abide by a ruling it wasn’t able to challenge. Instead, the Court in such instances issues what’s known as a “Munsingwear vacatur” (named after the 1950 decision that first proposed such a solution). Such a ruling summarily wipes the lower-court decision off the books and remands the matter so that it can be dismissed. As the Trump-Biden transition cases underscore, these rulings are yet another example of technical, procedural orders that can produce significant real-world impacts.

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