GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2021

Status

Accepted

Abstract

Over the last six years, the Supreme Court has adopted a regular practice of making many of its most important decisions without giving any reasons for those decisions. The Court's justification for this practice is the temporary nature of the effects of the many decisions in which it stays or declines to stay a major government action. Many of those decisions have enormous long-term effects, however. In many cases, they are the only decision the Court will ever make with respect to an important government action.

In this essay, Professor Pierce describes and explains the extraordinary growth of the Court's shadow docket. He then argues that the Court must stop this practice. The Court regularly berates and reverses agencies for failing to engage in reasoned decisionmaking. The Court has made it clear that there can be no law without reasoned decision making. It needs to look in a mirror, recognize that it is faiing to comply with its own definition of lawful decision making, and return to its traditonal practice of explaining its decisions.

GW Paper Series

2021-26

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