The Supreme Court’s applications docket, often misleadingly called the “shadow docket” or “emergency docket,” is controversial, complex, and poorly understood. Using original data spanning nearly two decades, I unravel the docket’s empirical foundations. Applications practice changed fundamentally in recent years. Contrary to conventional wisdom, dispositions declined on average, but this conceals divergent trends: among applications involving stays and injunctions, capital dispositions decreased while noncapital dispositions increased. Moreover, noncapital applications now comprise a larger share of the docket than capital applications. This shift enhances docket salience because, as I show, most capital applications are denied simultaneous to denying plenary review, while most noncapital applications are disposed of without a linked merits petition on file. Thus, whereas applications were once mostly subsumed by agenda setting decisions, they are now increasingly impactful in their own right. Among noncapital applications, other important changes include more initial referrals, grants, reason giving, and written dissents. Among capital applications, requests to vacate stays of execution are increasingly common and typically granted. The results have important implications for debates about procedural legitimacy, institutional transparency, and the broader shadow docket’s conceptual core.
"The Applications Docket,"
Georgia Law Review: Vol. 58:
1, Article 4.
Available at: https://digitalcommons.law.uga.edu/glr/vol58/iss1/4