Shades of Scrutiny: Standards for Emergency Relief in the Shadow Docket Era

Abstract

Historically, the Supreme Court's docket of administrative orders and emergency petitions has existed largely in the shadow of its merits docket. During the COVID-19 pandemic, the Court increasingly employed this "shadow docket" in highly politicized challenges to both state and federal public health policies that affected millions of Americans. The Court draws upon longstanding statutory authority to grant and withhold emergency remedies, usually in the form of preliminary injunctions and stays of injunction. By maintaining the status quo, these forms of equitable relief offer temporary remedies and prevent alleged harms to litigants while courts consider the legality of the action at issue. The nature of emergency relief, however, requires the Court to depart from its usual procedure of oral arguments, briefing, and lengthy consideration of the substantive legal issues. As a result, when the Court grants or withholds such relief, it rarely offers an opinion that explains the standard of review or the rationale behind the decision. Though the Court's jurisprudence offers at least three standards that govern emergency remedies, the Court continues to issue relief without expressly adopting or employing a uniform standard. This Note discusses the historical standards of review and the variations in recent shadow docket rulings regarding public health measures. In an era where pandemics seem increasingly unavoidable, governments will turn to health measures to contain perceived threats. In challenges to these measures, governments and aggrieved citizens will rely on emergency remedies to prevent purported irreparable harms while courts determine the validity of such measures. This Note argues that the Supreme Court should adopt a new, two-part standard that governs this important remedy, especially as applied to petitions for emergency relief during public health crises.