The U.S. Supreme Court's term did not end with its blockbuster decisions on President Donald Trump's taxes. The final day will be the first Monday in October when the Chief Justice gavels out the old term and gavels in the new one. Between now and then, there will be more decisions, but they won't be in argued cases; they won't be signed decisions; and they likely won't have much explanation for the result.
These rulings are what court scholars and others have come to call the Supreme Court's "shadow docket" because of their general lack of transparency and their departure from the Justices' usual decision-making process. The cases often come to the court as emergency applications—requests—for some action by the Justices, usually to block a decision by a lower court. And they are "emergencies" because of an impending deadline, for example, an execution date or an election.
In the past few weeks, the Justices dealt with a series of emergency applications from lawyers for federal death row inmates facing imminent execution. The lawyers sought stays (or delays) in the executions, claiming that the inmates had unresolved legal and constitutional issues. The Justices issued orders denying their requests.
In one of the execution cases, four Justices would have delayed the execution. By dissenting, they made clear that the ruling was 5-4. Dissenting opinions are a small window into the court's often opaque deliberations. But when there are not four dissenting Justices, it may not only be unclear what the basis of the ruling was but also how each Justice voted because they do not have to reveal their votes.
In the run up to a presidential election, the Justices almost always face a flurry of emergency applications involving what Justice Ruth Bader Ginsburg has called "the precious right to vote." That has been particularly the case since a divided Supreme Court decision in 2013 struck down a key section of the Voting Rights Act of 1965, the crown jewel of the civil rights movement.
Almost immediately after that 2013 decision, several states with histories of discriminatory voting practices moved to implement voting restrictions and requirements that had been blocked by the lower federal courts. Those state acts included mandating photo IDs to vote, reducing the number of polling places, purging registration rolls, and cutting back early voting hours.
This summer, the Justices already have dealt with four election-related emergency applications. Many more potential cases are in the lower courts' pipeline. But this year, many of the cases are coming with an added element—the coronavirus pandemic.
In Republican National Committee v. Democratic National Committee, the Republican committee asked the Justices to block a federal trial judge's order requiring Wisconsin officials to extend the deadline for voters to mail absentee ballots because of the pandemic. In Merrill v. People First of Alabama, state officials sought a stay of a judge's order easing voting requirements such as photo IDs for absentee ballot applications and witnesses' signatures on absentee ballots and limits on curbside voting, again because of the pandemic. In both cases, the Justices in 5-4 votes approved the requests.
In Texas Democratic Party v. Abbott, the political party sought to resurrect a pandemic-related injunction blocking Texas' restriction of no-excuse vote-by-mail only for voters over the age of 65. The Supreme Court rejected the party's application. In a non-pandemic election case, Raysor v. DeSantis, the Justices blocked a trial court's order finding unconstitutional Florida's restriction on voting by people who had served time for felony convictions and were unable to pay outstanding fines or fees.
The Wisconsin case was the only one of the four in which the court issued an opinion—unsigned—explaining why it ruled the way it did.
The rationale underlying the Justices' rulings in many of the election emergency applications is a 2006 Supreme Court decision stemming from an Arizona challenge—Purcell v. Gonzalez. State and county officials asked the Justices to lift an injunction blocking enforcement of a photo ID requirement for voter registration. In an unsigned opinion, the Justices agreed with the state's request, writing: "Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules."
Since then, the Purcell opinion has been cited, as it was in this summer's Wisconsin case, for the proposition that "lower federal courts should ordinarily not alter the election rules on the eve of an election,” otherwise voter confusion or chaos could ensue.
The Supreme Court's application of the "Purcell principle" has been criticized by some election law scholars in general and more specifically in the context of the nation's pandemic.
One scholar, Richard Hasen of the University of California Irvine School of Law, has urged the Justices to rein in Purcell which, he argues, has been elevated above other factors that the Justices normally weigh in considering emergency stays and other requests for relief. He has written: "By making the Purcell principle paramount, the Court runs the risk of issuing orders which can disenfranchise voters or impose significant burdens on election administrators for no good reason."
And another scholar, Franita Tolson of the University of Southern California School of Law, recently said of the Wisconsin ruling: "The court seemed to apply the Purcell principle without any consideration of context. It didn’t matter we are in the middle of a global pandemic of a lifetime. The opinion assumed this is an election and we must play by normal rules."
The Justices have yet to act on a fifth pandemic-related election case, Little v Reclaim Idaho. State officials are asking the Justices to lift an injunction barring Idaho's requirement of original signatures on ballot initiative petitions and allowing the collection of electronic signatures because of the coronavirus and the health risks of in-person signature collections. There are filing deadlines to be met in this case as well.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
