Clouded Precedent: Tandon v. Newsom and its Implications for the Shadow Docket
The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.
A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free Exercise Clause of the First Amendment.1 But Tandon also introduces an element of uncertainty. Will lower courts treat it as they would a merits decision, or will they apply it with caution, given its status as a shadow docket case?
After reviewing the existing literature on the shadow docket and explaining the potential significance of Tandon, this Article examines the initial decisions that have grappled with the case. Noting that some judges have treated Tandon as a major shift in free-exercise law, while others have minimized or essentially ignored it, I suggest that in several respects Tandon is similar to Bush v. Gore, another per curiam opinion that some courts have been reluctant to apply as precedent. The experience of Tandon suggests that pronouncements in the Supreme Court’s shadow docket opinions do not produce the same level of consistency and legal certainty as those in merits opinions, providing further evidence for those arguing that the Court’s current shadow docket practices warrant reform.