Common Law – Infrapolitical Reflections

In recent years there has been a steady but increasing practice in the American legal system that has passed unnoticed outside the corridors of law professors and practitioners of litigation, including the federal state that has summoned to its practical use: the emergency relief, or ‘shadow docket’ that puts the burden on the Supreme Court to decide on concrete questions without a formal hearing, fact finding, or without proper argumentative opinions of visible authorship (the judge who pens the opinion tends to deface his authorship). Since the outbreak of the Covid-19 pandemic, the Supreme Court of the United States has increasingly expanded its so-called ‘shadow-docket’ in parallel with the merits docket to such an extent that, as some legal theorists have noted, the blurring of the borders between the first and the second have become so tenuous and intertwined that it would seem that the merits docket depends on the prior selection mustered in the shadow docket. As constitutional scholar Stephen Vladeck has registered in his The Shadow Docket (2023), a practice that historically was strictly tied to emergency relief for capital punishment executions, it has now become a normal vehicle to decide on the emergency contingencies, while at the same time exercise discretionary judgement regarding the merits, or actual dispute, of case pending future review that might never be considered at all [1].

It must be said that the selective practice of cases by the court through the notion of “certiorari” on merits cases was in itself a decision on the exclusivity of relief based on the criteria of major legal questions of interest to the court. But precisely the differentiation between certiorari and the shadow dockets grants sharp focus on their differences. On the one hand, the shadow docket fails to decide on “legal questions” – in fact, it avoids tailoring the boundaries between the other branches of government and itself, as some have noted – and, by the same token, its non-decision produces a precedent lacuna that further entrenches the ascension of the shadow docket, inviting an evermore practice of emergency relief to increase chances of ‘cert’. Contrary to expert opinion, this is a juridical situation that does not create the conditions for the normalization of the “state of exception”, since there is really no authoritative decision to stabilize a concrete order, which was the purpose of Carl Schmitt’s well known formulation about sovereign arcana in political theology. In a certain sense, we have already crossed this threshold. Rather, the shadow-docket as a juridical practice in the American legal order is an institutional symptom in which decision has been evacuated or rendered inoperative, so that emergent social needs enforce any specific arrangements and political vectors through an enacted order.

Furthermore, the shadow-docket as a regularized legal practice at the highest court confirms the historical shift within American legal system from the empire of the courts to administrative departmentalized commands, which ultimately means that the formal tendency towards “delegation” should not be solely circumscribed in allocated powers of the different branches’ oversight and control, but rather is a product of a holistic tendency towards the emergence of a new form of social indeterminacy in which authority resides in the shadows. As Supreme Court Jackson writes in the “Per Curiam” dissent in Trump v. JGG (April 7, 2025): “With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: we are just as wrong now has we have been in the past, with similar devastating consequences”. It is an astonishing statement from the Judge not only because of what it states, but also what it silences; mainly, that by leaving no trace at all of their argumentative reasons there is no precedent, and for that matter no process and thus no case. And what is a rule of law devoid of a case and precedent? The historical schism with respect to the tradition of Common Law that gives birth to its formal constrains should be utterly obvious. Ultimately, this evidences the uttermost decline of the legal positivist horizon of the modern law rooted in legitimate authority (authoritas, non veritas, facit legem), in which arbitrary decisionism, legal motorization, and appeals to external values align themselves in order to render absolute determinacy between social life and legal execution without any preclusion in the form of a social trial without end. In this sense, it would be foolish to assume that the crisis of authority with the dissolution of auctoritas in the social spheres compartmentalized in functions of the “political community”; on the contrary, in the shadow docket scenario, authority “becomes more and more abstract, more and more inhuman and inexorable; more and more demanding” [2]. The orientation of executive commands is met with proportional digression of adjudicated moral pondering, and each time the force of legalization is vigorously expanded.

The decline of the juridical decision, one would be tempted to say, paves the way for the infinite demands at the expense of the arbitrary values formation of social gigantism. In the opinion about college admissions and racial discrimination of the 2023 merits docket cycle (Students for Fair Admissions v. Harvard College), Justice Roberts wrote that “What cannot be done directly cannot be done indirectly. The constitution deals with substance, not shadows”. An ironic statement, indeed, given the preeminence of the shadow-docket in the adjudicative practice of the Supreme Court itself. While the administration of justice becomes a practice in the shadows, one cannot but be reminded of Plato’s protofigure of the Guardian of Constitution, the Nocturnal Council, as elaborated in the last pages of The Laws. And for Plato “if a state lacks such constituent [a Nocturnal Council], no one will be surprise to see it staggering from one irrational and senseless expedient to another in its affairs…that body must posses virtue in all of its completeness which amens that it will not take erratic aim at one target after another but keep its eye on single target and shoot all its arrow at that” [3]. On the tail opposite end of the platonic Nocturnal Council, the United States’ highest court’s gliding abdication seems to erratically aim at repeated targets that emerge blasting flickering lights from within the ever present shadow docket – indeed, a momentary luminosity, full of ‘technical terms’ and deferrals, that aim to showcase that the rule of law still endures in the House of Justice.

Notes

1. Stephen Vladeck. The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic (Basic Books, 2023), 19.

2. Theodor W. Adorno. “On the Problem of the Family” (1955), Endnotes, 2022: https://endnotes.org.uk/posts/theodor-adorno-on-the-problem-of-the-family-1955

3. Plato. The Laws (Penguin Books, 1975), 520.

Even if it is appalling to witness the brute amount of executive force in the current American political system, it is nonetheless “business as usual” if understood within the internal development of its own legal order. In other words, what is emerging is not a drastic rupture or abdication due to external pressure against “legal liberalism”, broadly understood as a package of normative rights to solve social conflicts in a political community, but rather the consequential effect of the decline of the legitimating force of positive law, the modern legislative state, and the principles such as the right to due process – which includes but it is not limited to a public hearing, a defense, the right to a defense, cross-examination of witnesses, or an impartial jury. The slow erosion of constitutional due process has not only resulted in an unprecedented upsurge of civil cases resulting in “guilty pleas” devoid of legal process (about 95% of cases according to Supreme Court Judge Neil Gorsuch), but also in the collapse of remedies from government even if a federal court decides against the state. As Aziz Huq shows in The Collapse of Constitutional Remedies (2021), the demise of legal remedies means that the federal courts at large can only “interpret the constitution” but remains silent and inoperative in terms of the practical solutions to amend injuries, seizures, or plain violence enacted.

Any attentive student of the history of law does not second guess that many centuries before the ratification of the Constitution of 1789, the principles of modern criminal procedure, such as due process, fair trial and reasonable doubt, were already sedimented to such an extent that the Medieval canonist Guillaume Durand in Speculum iudiciale (1291) claimed that the right to defend himself should not be denied even to the devil if he were summoned to the court. In this sense, the so-called “Due Process Clause” of the Fifth Amendment of the U.S. Constitution that claims that “No person shall be deprived of life, liberty, or property, without due process of law” is a latecomer to the internal development of Common Law’s theological secularization. And it should not go unnoticed that the clause explicits states “person”, instead of the narrow privilege to the “citizen” or the “legal resident”, which is why during the Founding Era even foreign pirates accused of illegal activities were still subjects of the Due Process clause under the international and domestic legal order. As crude as it may sound, in the current moment one could very well say that the “concept of piracy” had more footing in a juridical concrete order than in the current legal stasis operative in a post-positive scenario.

Even those constitutional scholars that in the wake of the “War on Terror” defended the Sedition Act of 1798 in order to defend a “process reduction” during an instance of political emergency, also warned of governmental overreach could very well upset political opposition and public support or loyalty (Vermuele & Posner, 2007, 235). Today we are in muddier waters (although fully “rational”) in which the punitive juridical order increasingly acts without a “process”, and the Federal Courts are incapable of offering clear cut remedies. This begs the question: what comes after the classical paradigm of due process inherited from the historical dispensation of Common Law? In other words, if the rule of law can now fully prescind, under ordinary times (there is no “emergency declaration”), of the right to due process and to the guarantee of remedies, what is the source of its legal authority?

This is an ambitious question that we cannot even attempt to answer here, but there is at least one possible working hypothesis: mainly, that post-positive rule of law adjudicates from the production of its own justification. It goes without saying that legal justification has always been an internal mechanism of legal authority; but only now is the force of justification taking over formal procedures, normative guarantees, and written and unenumerated rights. Justification makes its way as a rhetorical subsumption of any sphere of social reality. This is why, for the Federal Judge James Ho, “migration” can be understood as hostile forces if properly justified as an “invasion”. As a further task to be explored, one should bear in mind as a symptom that the most influential and enduring legal philosophy to have emerged within the crumbling edifice of modern legal positivism was precisely a concept of law defined by two guiding criteria: “fit and justification”. This means that law’s empire is no longer ordered through the “process” but through what becomes “justified”.