Adam B. Sopko (State Democracy Research Initiative) has posted Invisible Adjudication in State Supreme Courts (North Carolina Law Review, Vol. 102, No. 6, 2024) on SSRN. Here is the abstract:
As the U.S. Supreme Court continues to retrench 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 debates over some of our most cherished rights and hotly contested questions of policy. 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 the many ways they influence society. This Article examines state supreme court shadow dockets, a particularly understudied aspect of their business. 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 more expansive and less transparent than their federal counterpart. State supreme courts have access to a larger universe of procedural and administrative devices that empower them in subtle but significant ways. And unlike the U.S. Supreme Court, where the public can easily access the inputs on and outputs from its shadow docket, most state supreme courts lack any meaningful public docket access. In this way, state supreme courts have access to more ways to shape and influence case outcomes with less public scrutiny. I refer to this broader, less transparent form of shadow docket activity as invisible adjudication.
This Article develops the concept of invisible adjudication and provides a framework to analyze its various manifestations. Its analysis of the phenomenon highlights the institutional implications for supreme courts. The Article provides insights into the more subtle ways state supreme courts can participate in a state's governance apparatus, shaping policy and protecting institutional interests, as well as the institutional risks invisible adjudication may force supreme courts to contend with. Beyond these institutional considerations, this Article raises theoretical implications, as well. Zooming out, invisible adjudication provides a new perspective on the nature of the state judicial power that extends beyond our current moment where state supreme courts find themselves in the spotlight. The Article lays the foundation for a new conception of that power and reflects on its doctrinal and methodological implications moving forward.
Very interesting and recommended.