The US Supreme Court as it was composed in 2020–21. Chief Justice John Roberts is seated in the center. The associate justices are, left to right, Samuel Alito, Brett Kavanaugh, Clarence Thomas, Elena Kagan, Neil Gorsuch, Stephen Breyer, Amy Coney Barrett, and Sonia Sotomayor. Nine people in black robes arrayed in front of a red curtained background.
9 September 2021
The US Supreme Court under Chief Justice John Roberts has taken to deciding a number of highly consequential, and sometimes high-profile, cases via what is called the shadow docket. But what is the shadow docket? And for that matter, what is a docket and where does that word come from?
The phrase shadow docket starts being used in legal circles in the early 2000s but in slightly different senses and contexts than it is used in reference to the Supreme Court. But all these senses refer to items on a court’s agenda that hidden from plain view.
The earliest use that I have found is from the practice of county courts in Florida to not publish or publicize cases that involved those who were influential, rich, or famous. From an editorial in the Tampa Tribune of 21 June 2006:
The local scrutiny comes in response to an investigation by Attorney General Charlie Crist of whether Broward County has a shadow docket featuring prominent people. The existence of the hidden list creates the appearance that some people have received special treatment.
And around 2012, shadow docket was used in New York City courts to denote the list of real estate foreclosures that languished without action on the courts’ dockets because the lenders had stopped filing paperwork. From the New York Post of 15 July 2012:
According to attorneys at the non-profit MFY Legal Services based in Manhattan, plaintiffs by and large could not verify the documents and stopped filing RJIs [Requests for Judicial Interventions], leaving borrowers in limbo in the court system.
A study by MFY in April 2012 found that almost 75 percent of cases filed in Queens and Brooklyn in October 2011—one year after the rule was implemented—were held up in courts in what is known as the “shadow docket.”
Use of the phrase shadow docket in reference to the Supreme Court was first made by law professor William Baude in a New York Times op-ed column on 3 February 2015. Baude uses shadow docket as a synonym for what is more conventionally known as the orders docket. Baude explains:
Mr. Warner’s execution illustrates the high stakes in a crucial part of the court’s work that most people don’t know anything about: its orders docket.
Work at the Supreme Court is divided into two main categories. One is deciding the cases it hears on the merits: the 70-some cases each year that the court selects for extensive briefing, oral argument and a substantial written opinion, sometimes with dissents. These are the cases we hear about in the news.
The orders docket includes nearly everything else the court must decide—which cases to hear, procedural matters in pending cases, and whether to grant a stay or injunction that pauses legal proceedings temporarily. There are no oral arguments in these cases and, as in Mr. Warner’s situation, they are often decided with no explanation.
This docket operates in such obscurity that I call it the “shadow docket.” (I was a law clerk for Chief Justice John G. Roberts Jr. in 2008–9, but these views are solely mine.)
Despite their obscurity, these orders—there are thousands each year, if you count decisions not to hear cases—are significant. Consider the flurry of orders issued in the month before the 2014 election. The court stopped Wisconsin from implementing a strict voter identification law while it allowed a similar law to be implemented in Texas, and it also stopped lower courts from expanding early voting in Ohio or voter registration in North Carolina.
The orders docket exists for good reason. Many procedural decisions are routine, even pro forma, and need no lengthy consideration. Others, such as a decision as to whether executing someone is constitutional, cannot wait for a full hearing, so the court may grant a stay on the orders docket to give themselves time to decide whether they should consider the case on the merits. But when substantive decisions are made in secrecy and with little or no explanation, justice can be short-circuited, lower courts are left in limbo as to what to do with similar cases, and faith in the court is eroded.
Baude claimed coinage in this op-ed, and it is likely that, those earlier uses being localized ones, he had never seen the term shadow docket before, or at most he was not conscious of having seen them. In any case, he deserves credit for applying the term to the Supreme Court. It is not at all unusual for a term to have multiple related, but slightly different, senses in early usage—different groups will independently coin a term or interpret and apply a term in slightly different ways, before the term settles down into a single, widely accepted meaning.
That explains where the shadow part comes from, but what about docket?
The origin of docket is a bit more uncertain, but it probably comes from the word dock, meaning the flesh part of an animal’s tail, as opposed to the hair—think of a horse’s tale. The origin of dock is obscure, but the word has cognates in other Germanic languages. The word is first recorded c.1390 in the anonymous poem Sir Gawain and the Green Knight in a passage describing the Green Knight’s horse:
Þe tayl and his toppyng twynnen of a sute
And bounden boþe wyth a bande of a bryʒt grene
Dubbed wyth ful dere stonez, as þe dok lasted,
Syþen þrawen wyth a þwong.(The tail and his mane were twins of a set, and both were bound with a band of bright green, arrayed with very precious stones, extending to the dock, then drawn up with a thong.)
At around the same time the verb to dock, meaning to cut something short, also appears. From the description of the Reeve in the General Prologue to Geoffrey Chaucer’s The Canterbury Tales:
The REVE was a sclendre colerik man.
His berd was shave as ny as ever he kan;
His heer was by his erys ful round yshorn;
His top was dokked lyk a preest biforn.(The Reeve was a slender, choleric man. His beard was shaved as close as could be; his hair was shorn all around by his ears; the top of his head was docked in front like a priest’s.)
This verb is still used in reference to cutting animals’ tails. But the verb to dock is also used in reference to cutting or curtailing other things, as in the phrase to dock someone’s pay. This use is also quite old, recorded only a decade or so after Sir Gawain and the Canterbury Tales. It appears in an anonymous, anti-clerical poem titled Jack Upland, set down in 1402. The poem, which draws upon William Langland’s Piers Plowman for inspiration, details exchanges between a man, Jack Upland, and a friar, exposing the corruption in the friar’s order:
And so þou mysse takist Ierom, & lyest on Bernarde,
For Alrede his clerke wrote þis reson
Þat þou mysse layst & dokkist it as þe likiþ.(And so, you mistake Jerome and lie about Bernard, for Alrede, his clerk, wrote this argument, that you sinfully beat and dock it as you like.)
The word docket appears within a century, meaning a summary or abstract of official proceedings—an abridgement, after all, is a form of cutting. From the Liber niger domus regis Angliae (Black Book of the King of England), which isn’t a list of the those with whom the king has had dalliances, but which sets forth regulations for the governing of the household of King Edward IV. We don’t know exactly when it was written, but it must date to sometime before 1483, the year of Edward’s death:
For the resorte of the comers, as it is before sayde, yf her noble presence be in this courte, then the doggettes in the countyng house bere witnesse bothe of her venit et recessit ad curiam, vel a curia, post prandium sive ante, tociens queeins.
(For the benefit of the arrivals, as has been said before, if her noble presence is in this court, then the dockets in the counting house should bear witness both of her coming and departure to the court, or from the court, before or after dinner, as often the queen likes.)
By the mid seventeenth century, docket had come to mean a registry of legal judgments. We see this sense in the Diary of Samuel Pepys for 12 March 1669. The passage here is longer than it need be, but I couldn’t bear to dock it for reasons that will be clear upon reading:
And here I did set a clerk to look out for some things for me in their books, while W Hewers and I to the Crowne Office, where we met with several good things that I wanted and did take short notes of the Dockets; as so back to the Patent Office and did the like there, and by candle-light ended; and so to home, where thinking to meet my wife with content, after my pains all this day, I find her in her closet, alone in the dark, in a hot fit of railing against me, upon some news she hath this day heard of Deb's living very fine, and with black spots, and speaking ill words of her mistress; which with good reason might vex her, and the baggage is to blame; but God knows, I know nothing of her nor what she doth nor what becomes of her; though God knows, my devil that is within me doth wish that I could.
And on the other side of the Atlantic, docket took on a related, but slightly different, sense, that of a register of pending cases before a court of law. From the minutes of the Pennsylvania General Assembly for 23 March 1790:
Whereas a respectable number of the inhabitants of the western part of York county have, by their petition to this Assembly, set forth, that they labour under very considerable difficulties and inconveniences, in consequence of their being obliged to attend at York-Town as their seat of justice, owing to the great distance many of them are from it, and the crouded situation of the docquet, whereby they are much difficulted to obtain justice.
So, that’s how docket went from an animal’s tail to the agenda before a court of law.
Sources:
Andrew, Malcolm and Ronald Waldron. “Sir Gawain and the Green Knight.” The Poems of the Pearl Manuscript. Exeter: U of Exeter Press, 2002, lines 191–94, 214. London, British Library, Cotton Nero A.10.
Baude, William. “The Supreme Court’s Secret Decisions.” New York Times, 3 February 2015, A23. ProQuest Historical Newspapers.
Bockmann, Rick. “SE Queens Leads City with 42% of Foreclosures.” New York Post, 15 July 2012, Queens Weekly 16. Readex: America’s Historical Newspapers.
Chaucer, Geoffrey. “General Prologue.” The Canterbury Tales, lines 1.587–90. Harvard’s Geoffrey Chaucer Website.
“Court Dockets Should Not Be Kept Secret.” Tampa Tribune, 21 June 2006, 12. ProQuest Historical Newspapers.
Heyworth, P.L., ed. “Upland’s Rejoinder.” Jack Upland, Friar Daw’s Reply and Upland’s Rejoinder. Oxford: Oxford UP, 1968, lines 342–44, 112. HathiTrust Digital Archive. Oxford, Bodleian Library, Digby 41.
Liber niger domus regis Angliae; id est, Domus regiae sive aulae Angliae Regis Edw. IV. (The Black Book of the King of England; that is, the Royal House or Court of the King of England Edward IV.) In A Collection of Ordinances and Regulations for the Government of the Royal Household. London: Jon Nichols for the Society of Antiquaries, 1790, 24. Gale Primary Sources: Eighteenth Century Collections Online (ECCO).
Middle English Dictionary, 2019, s.v. dok, n., dokken, v.
Minutes of the Second Session of the Fourteenth General Assembly of the Commonwealth of Pennsylvania (23 March 1790). Philadelphia: Hall and Sellers, 1790, 207. Gale Primary Sources: Eighteenth Century Collections Online (ECCO).
Oxford English Dictionary, second edition, 1989, s.v. docket, n.1, dock, n.2, dock, v.1.
Pepys, Samuel. The Diary of Samuel Pepys (12 March 1669), vol. 9 of 10. Robert Latham and William Matthews, eds. Berkeley: U of California Press, 1976, 480–1. HathiTrust Digital Archive.
Photo credit: Fred Schilling, 2020, Collection of the Supreme Court of the United States. Public domain image.