Emergency, Shadow... Or Half-Enchilada Docket? The Results

Was there a partisan skew to the outcome of this poll? Most definitely.

Half of an enchilada—my lunch today (photo by David Lat).

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Earlier this month, I opened a reader poll asking you to vote on what to call the Supreme Court’s other docket—all the SCOTUS cases that are decided without full briefing and oral argument, i.e., not the “merits cases.” What did it reveal?

Based on a week of voting and around 500 responses, here are the results (because of rounding, percentages throughout this post don’t always add up to 100):

• Shadow docket: 42.5 percent

• Emergency docket: 15.1 percent

• Short-order docket: 10.3 percent

• Interim-relief docket: 9.6 percent

• Non-merits docket: 7.6 percent

• Equity docket: 3.7 percent

• Preliminary-relief docket: 2.9 percent

• Other: 8.9 percent

I consider “interim-relief docket” and “preliminary-relief docket” to be pretty close; I suspect folks who voted for one would list the other as their second choice in a ranked-choice voting system. So if you combine them into “Interim/preliminary-relief docket,” it would come in #3, with 12.5 percent of the vote.

Was there a partisan valence to the poll results? Yes.

For reference, here’s the breakdown of the overall voter pool by partisan affiliation:

• Democratic: 43.2 percent

• Republican: 21.8 percent

• Libertarian: 2.7 percent

• Independent: 2.3 percent

• Green: 0.0 percent (sorry, Jill)

• None (i.e., no party affiliation): 29.0 percent

• Other: 1.2 percent

In case you’re wondering, “Other” included No Labels, “A pox on all their houses,” “Former Republican who’s now a non-Republican,” “I’m from New Zealand,” and “Law school student who thinks this debate is interesting!” (The “Independent” voters came in via “Other,” but there were enough of them for me to break them out into a separate category.)

With the benchmarks above in mind, here’s the popularity of each proposed term, broken down by party affiliation:

• The “shadow docket” faction was 65.0 percent Democratic, 6.3 percent Republican, 1.5 percent Libertarian, 2.0 percent Independent, 24.8 percent none/no party affiliation, and 0.5 percent Other.

• The “emergency docket” faction was 25.0 percent Democratic, 44.4 percent Republican, 2.8 percent Libertarian, 1.4 percent Independent, 26.4 percent none/no party affiliation, and 0 percent Other.

• The “short-order docket” faction was 25.0 percent Democratic, 23.1 percent Republican, 3.9 percent Libertarian, 3.9 percent Independent, 44.2 percent none/no party affiliation, and 0 percent Other.

• The “interim/preliminary-relief docket” faction was 32.8 percent Democratic, 36.1 percent Republican, 1.6 percent Independent, 1.6 percent Libertarian, 27.9 percent none/no party affiliation, and 1.6 percent Other.

• The “non-merits docket” faction was 27.0 percent Democratic, 43.2 percent Republican, 2.7 percent Libertarian, 8.1 percent Independent/Oregon Independent, 18.9 percent none/no party affiliation, and 0 percent Other.

• The “equity docket” faction was 16.7 percent Democratic, 16.7 percent Republican, 16.7 percent Libertarian, 0 percent Independent, 44.4 percent none/no party affiliation, and 5.6 percent Other.

These were the favorite choices of voters from the various political parties, based on their overrepresentation in each faction:

• The favorite option of Democratic voters was “shadow docket.” Democrats were 43.2 percent of the overall pool, but 65.0 percent of the shadow-docket voters.

• The favorite options of Republican voters were “emergency docket” and “non-merits docket.” Republicans were 21.8 percent of the overall pool, but 44.4 percent and 43.2 percent, respectively, of the voters for “emergency docket” and “non-merits docket.” (I’m mentioning both because I don’t see the difference between them as significant; it’s basically a tie.)

• The favorite option of Libertarian voters was “equity docket.” Libertarians were 2.7 percent of the overall pool, but 16.7 percent of the equity-docket voters.

• The favorite option of Independent voters was “non-merits docket.” Independents (including one Oregon Independent) were 2.3 percent of the overall pool, but 8.1 percent of the non-merits docket voters.

• The favorite options of voters with no affiliation were “short-order docket” and “equity docket.” Unaffiliated voters were 29.0 percent of the pool, but 44.2 percent and 44.4 percent, respectively, of the voters for “short-order docket” and “equity docket.” (Again, I’m mentioning both because they were so close.)

Given how the Supreme Court has been voting on that docket—18-3 for the Trump administration, per the New York Times editorial board—it’s not surprising that Democratic voters favor “shadow docket,” with its negative connotations. It also makes sense that Republican voters favor the more neutral terms of “emergency docket” and “non-merits docket.”

I found it interesting that Libertarian voters like “equity docket.” Perhaps they’re fans of David French, who has been pushing this pick on Advisory Opinions? Independent voters prefer “non-merits docket,” presumably because of its neutrality. I’m pleased to see that my fellow unaffiliated voters support my preferred term, “short-order docket” (alongside “equity docket”).

I also allowed readers to offer write-in options, under “Other.” What were some of the suggestions?

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Here are a few that jumped out at me, in alphabetical order (some serious, some not-so-serious; quotations reflect commentary from the nominator, while brackets reflect my commentary):

• A-Docket (“see SCOTUS docket numbering conventions like 25A123; reflects ‘applications’ rather than petitions; and denotes secondary nature, like statutes added later, see, e.g., 18 U.S.C. § 2261 and § 2261A”)

• Alternative docket

• B**shit docket [I don’t think the justices will go for this one]

• Expedited docket

• Half-enchilada docket (“because it’s not the whole enchilada”)

• Interlocutory docket [my husband Zach, executive editor of SCOTUSblog, likes this one]

• Irregular docket

• Lightning docket

• Motions docket

• Non-argument docket

• “Pick me!” docket [Was this is a reference to The Simpsons?]

• Pocket docket

• Stealth docket

• Provisional docket

• Rocket docket (“I assume most lawyers and commentators have failed to consider this obvious and entertaining consonance because of the phrase’s inherent association with rapid-fire trial courts—e.g., the Eastern District of Virginia—but the term is equally applicable here: these cases are promptly fired up to the Court and (often) receive swift resolutions”)

• Special docket

• Summary docket [I actually kinda like this one]

• WritsPlus docket [I feel like this should have a trademark symbol: “WritsPlus™ docket”]

Here are my takeaways from the poll results:

• Sorry, Justice Alito: with 42.5 percent of the vote, “shadow docket” is here to stay.

• But without a majority of the vote, and given the partisan valence to the poll results, I don’t think “shadow docket” will win universal acceptance either.

• In light of how divided the anti-shadow-docket vote is, it will be hard for any one alternative to gain traction.

• Given how strongly a person’s political views seem to affect their preferred term, we can add what to call that docket to the growing list of issues that we can’t agree upon in the country. Sigh.

So what do you think? Do any of the latest suggestions appeal to you?

Like the original story, this one is also a Notice & Comment post, with comments open to all—not just paid subscribers. As always, I welcome your thoughts.

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