In the comments to Josh Blackman’s post at VC, Molly Godiva called it “constitutional Calvinball.” Josh contrasts two shadow docket decisions to raise the question of whether, and to what extent, they create “clearly established” law for the purposes of qualified immunity.

The Supreme Court’s emergency docket ruling in Mirabelli and denial of certiorari in Foote will send conflicting signals. On the one hand, the Court blocked California’s policy on the shadow docket. On the other hand, the Court allowed a similar policy from Massachusetts to go into effect.

A question arises. Would this school district retain qualified immunity? Does Mirabelli, as an emergency docket ruling, create “clearly established” law? I know the Supreme Court has told us that emergency docket rulings are precedential. But is the law “clearly established”? Would this sort of ruling be clearly established by the Supreme Court for purposes of AEDPA?

While Josh focuses on the peculiarities of Mirabelli and Foote, the question is both far more fundamental and far more significant than whatever quirks might be taken away from them.

Perhaps it can be argued that Mirabelli did not actually establish any new law. The decision merely reaffirmed century-old precedents, Pierce v. Society of Sisters and Meyer v. Nebraska. But other emergency docket precedents arguably do establish new law. Just yesterday the Court GVR’d Smith v. Scott, fittingly enough a QI case, based on a recent per curiam opinion.

For the benefit of those who don’t fling SCOTUS shorthand around, “GVR” refers to grant, vacate, remand, of emergency applications on the shadow docket. In light of the extreme use of the shadow docket to address seismic shifts in law and public policy that would, and does, wreak havoc in legal stability, particularly given Trump’s use of executive orders to disrupt long-standing norms often far beyond his authority, courts are regularly left with nothing more than Supreme Court orders allowing, or staying, hugely damaging actions consisting of an order and nothing more.

Josh posits that while the question of whether shadow docket rulings are precedential remains an open question, he “suspects” the Supreme Court will see them as such and GVR decisions that conflict with their rulings.

This might be a way for lower court to push back on the shadow docket–by holding these rulings do not establish clear law for purposes of QI. The Supreme Court, I suspect, would say that any ruling of the Supreme Court would suffice.

As someone who takes great issue with qualified immunity, both as a legal concept and and in its excessive application, the more the law is clearly established, the better it theoretically would be to deny qualified immunity. In other words, I don’t think QI should exist at all, that every decision granting QI should simultaneously rule on whether the underlying conduct is unlawful so as to clearly establish the law, and that the limitations to conduct that is essentially the exact same as opposed to reasonably comparable is absurd. I do not like QI.

But that said, the shadow docket has no place in clearly establishing law, and its lack of basic due process should preclude it from having any precedential value. These decisions are based on emergency applications. There are no merits briefs, There is no oral argument. There is no deliberation in conference. There is nothing more than a vote to grant of deny, and there is generally no explanation or rationale to enable a lower court to understand what the Supremes are saying or why.

Josh, who has been a close watcher of the Supreme Court since his law student days, posits that the Supreme Court may well take the position that its rulings, any rulings, are precedential for no better reason than it’s Supreme and other court, well, aren’t. The Supreme Court, however, has yet to come out and say that. And even if it did, it would offer no clue how to apply bald rulings to other cases.

As noted up top, this leaves lower courts playing a game of constitutional Calvinball, without any basis to know whether to apply a shadow docket ruling as precedent or not, or any notion of what the unexplained ruling means under the circumstances before the courts. Neither judges nor lawyers are mind readers, and they shouldn’t be expected to know what the Supremes had in mind when they issued an emergency ruling, especially since many of the cases will eventually come before the Supreme Court on the merits with full briefing, argument and deliberations. Is the Court saying that once it issues an unexplained emergency order, the outcome on the merits is a fait accompli and the lawyers are wasting their time arguing to the contrary?

Certainty in the law, and particularly in the law as applied to qualified immunity applications, is critical in order to know what constitutes “clearly established.” But the shadow docket isn’t the place, or way, to do it, even though its become the go-to source for a great many of the most vexing issues of the day. The chaos produced by these half-baked rulings is a nightmare, but the solution isn’t to give bald decisions precedential value, but to stop the promiscuous use of the shadow docket and return the Supreme Court to its core purpose of establishing legal certainty after a full and fair hearing of the issues.