By Manny Marotta

Sen. Blumenthal and Rep. Ross last week introduced the Shadow Docket Sunlight Act, a bill aimed at increasing transparency around emergency Supreme Court decisions made outside the Court’s normal process of briefing and argument.

The legislation would require that any Supreme Court order granting, denying or vacating preliminary injunctive relief or a stay of such relief must include a written explanation, and that written explanation must reference the four factors courts traditionally consider for granting an such relief: (1) the likelihood of success on the merits, (2) potential irreparable harm absent the relief, (3) the balance of equities between the parties and (4) the public interest.

The bill would also require any orders of this sort to include a vote count from the justices, and would require the director of the Federal Judicial Center to report to Congress on compliance with the law.

By mandating written reasoning and vote disclosure for shadow docket rulings, the bill aims to improve public knowledge of Supreme Court decisions and encourage transparency. And by adding the four factors (and a House companion) to this year’s version (compare vs. last year’s), the bill has stronger text and broader support.

The legislation is endorsed by Fix the Court. FTC’s Gabe Roth said this in Sen. Blumenthal’s press release: “Justice Barrett said in September that the Court’s shadow docket orders are ‘not the final resolution […], just an interim call.’ But tell that to the men and women the Trump administration has deported, fired or pulled funding from thanks to these ‘interim’ rulings. Despite countless threats to their safety and immense pressure to work quickly, lower court judges are writing well-reasoned opinions on fast-developing issues in record time; that the justices can’t do the same is disrespectful to their fellow jurists and to the rule of law. Thankfully, Sen. Blumenthal has crafted legislation that puts a greater onus on SCOTUS to do that very work and make the shadow docket less shadowy.”

See a list of legislation endorsed by the Fix the Court so far in the 119th Congress here.