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Per Curiam Signals in the Supreme Court’s Shadow Docket

By June 1, 2023August 12th, 2023No Comments

Abstract: Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.

Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per curiam opinions that, without further examination, appear to favor expansive protections for law enforcement officials. Despite this pro-law enforcement trend, lower courts have not necessarily assumed this as a blanket directive to expand the scope of qualified immunity. Rather, lower courts have interpreted the Court’s per curiam opinions in a myriad of ways, construing different signals and applying them in subsequent cases, revealing a critical stream of discourse that has the ability to influence future doctrinal development.

Understanding how the current Court is using the orders docket will require a lengthier period of conversation, but one thing is clear: the prolific use of the orders docket has demonstrated that it is one worthy of deeper study given how frequently lower courts turn to these opinions for guidance. This Article advances a six-part taxonomy of signals, based on a study of qualified immunity cases, to catalog common attributes of a given per curiam opinion that causes lower courts to interpret the opinion one way or another. This categorization not only provides a novel foundation for studying this secondary docket, but also a critical lens for analyzing the percolation of signals across various doctrinal contexts.

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