Abstract
The Supreme Court has recently been utilizing the informal procedures of its shadow docket more extensively than before. Many have criticized this trend, arguing that it diminishes transparency and undercuts the Supreme Court’s legitimacy. This Article asks whether by expanding its use of the shadow docket, the Supreme Court is squandering some of its institutional advantages, thereby compromising the quality of its rulings. Research in the fields of cognitive psychology and behavioral economics suggest that it is. The informality and pace of the shadow docket risks enabling intuition, cognitive illusions, and biases to secretly play a larger role than they do under the Supreme Court’s more formal merits docket procedures. As a consequence, the shadow docket might be degrading not merely the appearance of justice but also its substance. Supreme Court Justices are talented and take their responsibilities seriously. Like most people, professionals, and judges, however, they might sincerely believe that they are immune to cognitive illusions and biases, yet remain susceptible to these hidden hazards nonetheless. Therefore, the Justices’ performance likely would be improved by holding fast to the handrails and institutional advantages that regular merits docket procedures secure for them whenever possible.
Recommended Citation
Andrew J. Wistrich,
Secret Shoals of the Shadow Docket,
23
Nev. L.J.
863
(2023).
Available at:
https://scholars.law.unlv.edu/nlj/vol23/iss3/8