Adam B. Sopko, Invisible Adjudication in State Supreme Courts, 102 N.C. L. Rev. 1449 (2024).
Abstract
As the U.S. Supreme Court continues retrenching important constitutional rights, interest is shifting to state courts and constitutions to serve as a backstop. More and more, state supreme courts are at the center of some of our most important debates of law and policy, resolving questions concerning bodily autonomy, democracy, the environment, and more. The increased attention on state supreme courts highlights the complexity and nuance that attend these institutions and reveals our limited understanding of how they operate and influence society. This Article examines one such aspect of state supreme court practice: the shadow docket. While the U.S. Supreme Court's shadow docket has garnered a significant amount of scholarly attention and public engagement, state shadow dockets are virtually absent from scholarly literature and public debate. This Article finds state shadow dockets are both broader and less transparent than their federal counterpart. Due to structural differences between state and federal courts, state supreme courts have access to a larger universe of procedural and administrative devices that empower them in subtle but signficant ways. Beyond the more expansive universe of shadow docket tools, state supreme courts are substantially less transparent than the U.S. Supreme Court. Unlike the Supreme Court's docket, where the public can easily access the inputs on and outputs from its shadow docket, most state supreme court dockets lack meaningful public access. In other words, compared to the U.S. Supreme Court, state high courts have access to more power and are subject to less scrutiny. This Article refers to this broader, less transparent form of shadow docket activity as "invisible adjudication." The Article's analysis of invisible adjudication offers both institutional and theoretical insights. At the institutional level, the analysis offers a new perspective on the ways state supreme courts can influence case outcomes and advance their institutional interests vis-a-vis coordinate branches. Invisible adjudication can also raise political costs that supreme courts must grapple with. On a theoretical level, invisible adjudication sheds light on the nature of the state judicial power. The Article then reflects on the practice's doctrinal and methodological implications for fundamental questions concerning the role of state supreme courts and the power they wield
