Blumenthal Leads Group of Thirteen Senators Introducing New Legislation to Shine Light on the Supreme Court's Shadow Docket

[WASHINGTON, D.C.] — Today, U.S. Senator Richard Blumenthal (D-CT) and U.S. Senate Majority Leader Charles E. Schumer (D-NY) were joined by U.S. Senators Sheldon Whitehouse (D-RI), Cory Booker (D-NJ), Alex Padilla (D-CA), Peter Welch (D-VT), Mazie Hirono (D-HI), Bernie Sanders (I-VT), Tina Smith (D-MN), Ron Wyden (D-OR), Jeff Merkley (D-OR), Amy Klobuchar (D-MN), and Dick Durbin (D-IL) in introducing new legislation to bring transparency to decisions on the Supreme Court’s emergency docket, also called the “shadow docket.”

The Shadow Docket Sunlight Act requires a written explanation and vote count for any decision concerning injunctive relief, including decisions on the Supreme Court’s shadow docket, to provide clarity and consistency to judicial decision-making. In addition to requiring the Supreme Court to provide a written explanation for shadow docket decisions and to indicate how each Justice voted on the decision by providing a vote count, the Shadow Docket Sunlight Act also requires the Federal Judicial Center to report to Congress annually on the Court’s compliance with the law.

“Americans deserve a public explanation and vote count for highly consequential decisions that the Supreme Court now issues increasingly on its shadow docket,” said Blumenthal. “Our Shadow Docket Sunlight Act would open these decisions to greater public view and scrutiny— literally bringing light and accountability to outcomes of important cases now handed down in peremptory silence. It would help raise and restore the stature and credibility of the Court by imposing more transparency and public understanding. Sunlight can be a source of heightened trust for an institution whose public reputation for integrity and independence has been plummeting. Americans deserve this minimum measure of accountability from the nation’s highest court.”

“Senate Democrats have been working to bring accountability to the courts,” said Schumer. “The American people need to be able to trust our judicial system, and the Supreme Court is no exception. The Shadow Docket Sunlight Act would add much-needed transparency and truth to the process. Sunlight is the best disinfectant, and there is no reason that the Supreme Court should be making decisions that are so very consequential to our country in the shadows.”

“The Roberts Court’s increasing use of the shadow docket makes it easier for this captured Court to quietly deliver for right-wing donors and Republican special interests without any meaningful transparency or public process.  This is yet another area where this Court has gone astray by exploiting a lack of strict, enforceable guidelines, so Congress should step in to create a stronger system of accountability,” said Whitehouse. 

“All Americans should be alarmed by the Supreme Court’s growing reliance on its ‘shadow’ docket to resolve controversial and high-profile cases without any transparency - no substantive explanations, oral arguments, or reasoning. This further pushes the Court’s deliberations and decisions out of view of public scrutiny and shields it from accountability,” said Booker. “This legislation will increase transparency in our nation’s highest court by requiring written explanations and disclosure as to how each Justice voted. We deserve to know how the Supreme Court is making the most consequential decisions in our nation that impact every aspect of our lives so that we can restore trust in the integrity of our institutions.”

“The Supreme Court’s increased use of the Shadow Docket to set precedent undermines their fundamental accountability to the American people, who deserve to know how and why Justices vote,” said Padilla. “This is not just a matter of basic transparency, but of legal clarity. Lower courts need to receive substantive reasoning to make their rulings, particularly as the Supreme Court makes sweeping changes in high-stakes areas like immigration and abortion rights.”

“The American public’s trust in our Supreme Court and our democracy is eroded. When our highest court increasingly relies on the shadow docket to advance a conservative agenda, that only further chips away at that trust,” said Welch. “Transparency is more important than ever. The Shadow Docket Sunlight Act holds the Court accountable and ensures everyday people aren’t kept in the dark when it comes to unexplained decisions on our highest court.”

“The significant increase in the Supreme Court’s use of the shadow docket undermines the integrity of our judicial process, enabling unexplained and inconsistent decisions in highly consequential cases,” said Hirono. “The Shadow Docket Sunlight Act would shine a light on how decisions are made on the shadow docket, bringing about increased transparency and accountability to the Court.”

“The Supreme Court’s shadow docket allows the Court to make quick, temporary decisions in certain cases that are awaiting full consideration. But these shadow docket decisions can have serious impacts, and can stay in place for months, without any explanation from the Court.” said Smith. “Requiring the Court to provide a written explanation and a vote count for significant shadow docket decisions would be an important step towards the transparency and accountability that Americans deserve from the judicial branch.”

“Leaving people in the dark on consequential rulings will only lead to a backslide in public trust and U.S. democracy,” said Wyden. “From COVID-19 policies to immigration reform and abortion access, the Supreme Court has continued to push through rushed decisions that can be life-altering and long-lasting. This legislation would reduce ‘shadow docket’ cases and bring the most powerful court in our nation back into the light for Americans to see.”

“The U.S. Supreme Court hands down life-altering decisions on voting rights, reproductive justice, and countless other critical issues that demand transparency in the Court’s decisions,” said Merkley. “The current Court is increasingly abusing its shadow docket to chip away at the rights and freedoms of the American people, handing down dangerous decisions under the cover of night and without any explanation or accountability. The Shadow Docket Sunlight Act would bring long-overdue transparency to the Supreme Court by requiring a written explanation and vote count for emergency docket decisions—a win for our democracy and for our rights.”

“With public trust in the Supreme Court hovering near an all-time low, the American people are demanding accountability and transparency from Supreme Court justices about their decisions. When the justices break from ordinary procedure or issue an injunction, there should be a public record of it, including a written explanation and vote count. As we continue to pursue Supreme Court ethics reform in the Judiciary Committee, the Shadow Docket Sunlight Act is another necessary step to restoring confidence in the Court,” said Durbin.

The Shadow Docket Sunlight Act is endorsed by Citizens for Responsibility and Ethics in Washington (CREW), Project on Government Oversight (POGO), Fix the Court, Demand Justice, Stand Up America, and Court Accountability.

"The Supreme Court's use of the shadow docket makes an already opaque court even less transparent. Decisions affecting our core rights should not be made in the dead of night without explanation," said Debra Perlin, Policy Director at CREW. "The shadow docket undermines the rule of law and negatively affects the public's already flailing confidence in the nation's highest court. We applaud Senator Blumenthal for introducing the Shadow Docket Sunlight Act, which is a meaningful step to rein in some of the most egregious instances of the Court's unreasoned and unexplained decision making. We encourage the Senate to give serious consideration to this important legislation and bring it to the floor for a swift vote."

"In a democracy, judges have to explain their decision-making—it is their most basic obligation. And the process by which they come to those decisions should be consistent and disciplined. This bill will move the Supreme Court away from its ad hoc, shadowy process when it decides some of the most important cases—including those where lives hang in the balance. We are grateful to Senator Blumenthal for addressing this growing and worrying problem at the nation's highest court,” said Sarah Turberville, Director of The Constitution Project at POGO.

"Six years ago, Chief Justice Roberts said about the Supreme Court, 'We're the most transparent branch in government in terms of [...] us explaining what we're doing.' If that was true then (it wasn't), it definitely isn't now given the rise in the justices' use of unsigned orders to make monumental changes to our laws and national policy. There's no question the public deserves an 'explaining of what [the justices] are doing' on the shadow docket in addition to the merits docket, and thankfully, since the Court has demurred, Sen. Blumenthal is taking action to bring much needed sunlight to a shadowy corner of Court practice," said Fix the Court Executive Director Gabe Roth.

“Much of the Supreme Court’s business is entirely hidden from public view, none more so than the shadow docket, which allows the justices to issue decisions without explanation or vote count. Americans deserve to know the rationale behind each decision, and how each justice voted,” said Brett Edkins, Managing Director of Policy & Political Affairs at Stand Up America. “The Shadow Docket Sunlight Act would bring much-needed transparency to shadow docket decisions and begin to repair the public’s broken trust in our nation’s highest court. We applaud Sen. Blumenthal for introducing this bill and starting a conversation about the essential need for congressional action to ensure transparency on the Supreme Court.”

Text of the legislation can be found here.

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