Supreme Court Scholar Challenges Shadow Docket Origins: Was Little Sisters Case Really the Beginning?

A fascinating debate is emerging among Supreme Court scholars about when exactly the controversial "shadow docket" began. Josh Blackman, a constitutional law professor, is pushing back against claims that Justice Sonia Sotomayor's 2013 emergency ruling for the Little Sisters of the Poor marked the birth of what critics now call the Supreme Court's most problematic practice.

The Little Sisters Moment

On New Year's Eve 2013, Circuit Justice Sotomayor granted emergency relief to the Little Sisters of the Poor, protecting the Catholic nuns from Obamacare's contraceptive mandate. The case became a pivotal moment in religious liberty jurisprudence, but was it really the first "shadow docket" ruling?

Blackman, writing in his 2016 book "Unraveled: Obamacare, Religious Liberty, and Executive Power," argues that several factors distinguish the Little Sisters case from later controversial emergency rulings that truly defined the shadow docket.

Key Distinctions from Later Cases

The scholar identifies five crucial differences that separate the Little Sisters ruling from what he considers true shadow docket cases:

Limited Scope: Unlike modern emergency docket cases seeking nationwide relief, the Little Sisters were only seeking protection for themselves. Most other religious nonprofits had already received similar relief from lower courts.

Proper Judicial Process: The case followed normal appellate procedures. Both the District Court and Tenth Circuit had ruled after full briefing, unlike later cases where the Supreme Court short-circuited the normal review process.

Administrative Stay First: Sotomayor initially issued only a temporary administrative stay on December 31, 2013, requiring government response by January 3, 2014. The full Court's order came three weeks later on January 24.

No Gamesmanship: Unlike the Obama Administration's later attempt to "bake in" the Clean Power Plan before Supreme Court review, there was no evidence of timing manipulation with the contraceptive mandate, which was statutorily set to begin January 1, 2014.

Unanimous vs. Divided: The Little Sisters case produced no recorded dissents, suggesting clear legal error by lower courts. This contrasts sharply with later 5-4 shadow docket splits that revealed deep disagreement about legal standards.

The Real Shadow Docket Birth?

Blackman suggests the Clean Power Plan case from 2015 better represents the true beginning of problematic shadow docket practices. In that case, the Supreme Court issued a stay of Obama's environmental regulations before the D.C. Circuit had even ruled, in a controversial 5-4 decision.

"The Obama Administration was trying to rush the policy to 'bake it in' before the Supreme Court could review it," Blackman notes, describing the kind of gamesmanship that characterizes modern shadow docket controversies.

Political and Legal Implications

This debate isn't merely academic. Understanding when and how the shadow docket began has important implications for reform efforts and public perception of the Supreme Court's emergency powers.

The Little Sisters case also highlights ongoing tensions between religious liberty and progressive policy goals. The nuns' victory became a symbol for conservatives fighting Obamacare's perceived overreach into religious conscience rights.

Looking Forward

As the Supreme Court continues to face criticism for its emergency docket practices, particularly during the Trump years, scholars like Blackman are working to establish clearer definitions and historical understanding of these procedures.

The professor acknowledges he wrote about the Little Sisters case "behind the veil of ignorance" before shadow docket criticism emerged, providing valuable contemporary perspective on what seemed like routine emergency relief at the time.

Whether the shadow docket began with Sotomayor's New Year's Eve ruling or later cases, the debate reveals how procedural questions can have profound implications for American governance and constitutional law. As emergency applications continue to generate controversy, understanding their origins becomes increasingly important for both legal practitioners and concerned citizens.

The Little Sisters case remains a landmark in religious liberty law, but its role in shadow docket history may be more complex than initially assumed.