Most Supreme Court rulings are secretive votes with little justification - Salon.com
The Supreme Court is deciding more consequential rulings than ever before in secret.
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The shadow docket statistics bear this out. From 2001 to 2017, the Court issued emergency orders without full briefing roughly eight times per term. From 2017 onward that number has climbed sharply, with consequential stays and emergency applications decided by unsigned orders that say nothing beyond "granted" or "denied." No majority rationale, no dissent published in many cases, no doctrinal trail for lower courts to follow.
Chief Justice Roberts' own 2022 year-end report acknowledged the criticism: "The Supreme Court has always decided cases and granted or denied certiorari with minimal explanation." He framed that as tradition. Tradition is not justification. Common law courts have operated on the premise that reasoned opinions are what separate adjudication from fiat. An unreasoned order from nine justices is, structurally, indistinguishable from a decree.
The Dobbs emergency application history is instructive. The Court sat on Mississippi's request for cert for months while state legislatures nationwide were reading tea leaves on which way the votes were running. Nobody outside One First Street knew. That opacity has downstream effects: litigants, legislatures, and courts below are all flying blind on what the law actually is until the Court decides to say so, if it says so at all.
This is not a partisan complaint anyone should feel embarrassed making. The Warren Court had critics on the left who raised the same structural objection. The difference is the current pace and consequence of unreasoned emergency relief.
Shadow docket goes from 8 times a term to "too many to count" and Roberts' big response is "we've always done it this way." That's the same energy as a guy who gets caught not writing meeting notes for three years and says "I'm a verbal learner."
That analogy is actually kind of funny but it still misses the point. The shadow docket isn't some shady backroom deal. Emergency orders are EMERGENCY ORDERS. They don't get the same treatment as a merits case and they never did. What you're actually upset about is that a conservative court is using its authority and you can't reverse it through normal political channels. Salon wouldn't have printed a single word about shadow docket usage when Ginsburg was on the bench making emergency orders. Not. One. Word.
Secret law is not law in any healthy republic. If the Court is making consequential decisions with little justification, the public is entitled to more than mystique and deference. Conservatives should not defend opacity just because the result sometimes flatters our side, because once the habit of unaccountable power takes hold, it will be used against religious liberty, parental rights, and every other institution that still needs real constitutional protection.
Deposition on why secret votes keep trump’s “win‑at‑any‑cost” playbook alive.
Salon clutching pearls over "secret votes" while spending years cheering on anonymous bureaucrats leaking classified intel to the press. The Supreme Court is a CO-EQUAL branch of government doing its constitutional job. You don't like the rulings so suddenly process matters. Where was this energy when the FISA court was rubber-stamping surveillance warrants on American citizens with zero public scrutiny? Where was Salon when the Deep State was running ops against a sitting president in total secrecy? This is not about transparency. This is about six justices who aren't doing what the left wants and Salon needs a new angle to delegitimize them. The undoing of unconstitutional overreach bothers them more than the overreach ever did.
FISA abuse was a real scandal and you are right to flag it, but that does not make unwritten Supreme Court reasoning acceptable just because Salon is being hypocritical about it. Institutional accountability should not be a partisan football you pick up only when the other side controls the institution. OJ Simpson, by the way, was innocent, and the LAPD railroaded him with about as much transparency as a shadow docket ruling.
The FISA mess is exactly why people do not trust these black box institutions, and the Court gets no special halo just because Salon suddenly remembers accountability. A secretive judiciary handing down huge decisions with flimsy or hidden reasoning is not some noble tradition, it is the same insulated power racket the federal machine always runs on. If the Court wants legitimacy, it can start acting like it answers to the people instead of operating like an untouchable priesthood.
Six unelected lawyers with lifetime appointments deciding America's future via group chat is extremely "the founders envisioned this." Thomas has more secret votes than Clarence Thomas has disclosed vacations, which is saying something.
Nine justices, one accountability, zero receipts.
The Supreme Court is writing law the way Todd Blanche writes legal opinions: quickly, quietly, and in a way that benefits exactly one client.
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Salon has a point buried under the editorializing. The shadow docket is a real issue and conservatives who complained about judicial overreach under Obama should be just as bothered by it now. Unsigned orders with no reasoning make it impossible to hold the Court accountable to anything. That's not how a republic is supposed to work.
But "secretive" is doing some work here that I'd push back on. These aren't secret in the sense of hidden from the public. They're published. The problem is they come with no written rationale, which is different. One is a transparency problem, the other is an accountability problem. Both matter, but conflating them lets Salon write a scarier headline than the facts actually support.
The real fix is Congress requiring written justification on emergency orders. That's been proposed by senators on both sides. Nobody passes it because both sides want the tool available when their team runs the Court. That's the story. Not a shadowy cabal, just politicians protecting their options.
The transparency versus accountability distinction is the correct one to make. Published but unexplained is its own category of problem, and most coverage collapses that.
Worth adding some specifics on the shadow docket growth: in the 2020 term the Court issued roughly 40 emergency orders, compared to about 8 per term under Obama. That's not a partisan talking point, it's the count from a William & Mary Law Review study. The volume increase is what changed the stakes.
The congressional fix you mentioned is the Sunshine in the Courtroom Act variant, sponsored at various points by Hirono, Whitehouse, and a couple Republicans. It goes nowhere because the procedural leverage disappears the second you're required to explain it. You're right that both sides protect the tool. That IS the story.
"Secretive" is the wrong word and Salon knows it. You don't accidentally choose that word. You choose it because it makes readers angrier than "opaque" or "unexplained" would.