At a Harvard Graduate School of Education (HGSE) event this week, Former U.S. Supreme Court Justice Stephen Breyer, J.D. ’64, defended the Court’s frequent use of the so-called “shadow docket,” saying that its increasing usage has to do with the kinds of cases that now come before the Court, rather than any political motive.
Speaking with HGSE academic dean and Shattuck professor of education Martin West as part of the school’s Askwith Forum series, Breyer—who retired from the Supreme Court in 2022—discussed a range of thorny issues, from affirmative action and students’ free speech rights to the difficulty of producing universal, “bright-line” answers for constitutional questions that are often complex and contextual.
Toward the end of the conversation, West brought up the Court’s increasing reliance on the “shadow docket,” in which decisions are made on an accelerated basis, often while cases are still pending in lower courts. These rulings, originally intended to apply in emergency situations, typically do not involve oral arguments, and the orders that emerge are brief and unsigned. Last week a New York Times report examined the rising volume of shadow docket cases since 2015, citing a trove of leaked confidential memos between the justices.
“Should we be worried about the Court’s reliance on the shadow docket?” West asked Breyer, noting that many audience members had submitted questions about it.
No, was Breyer’s short answer. “Every court has what you're saying is a shadow docket, which we call an emergency docket,” he said, explaining that throughout most of the Supreme Court’s history the docket had been used primarily to issue stays of execution in death penalty cases. “Or sometimes,” he added, there would be a “very important case about an election or an election rule, and we might issue the stay.”
Tracing the increasing use of the shadow docket in part to the rash of legal challenges that sprang up in the wake of vaccine mandates and other restrictions during the COVID-19 pandemic, Breyer—who now serves as Byrne professor of administrative law at Harvard Law School and as a visiting judge for the First Circuit Court of Appeals—rejected the notion that “there's some kind of plot involved within the Court to get this or that decided.”
Instead, he argued, the nature of cases reaching the court on an emergency basis has changed: rather than death penalty and election matters, many cases more often involve constitutional disputes about “the nature of the constitutional relationship” between Congress and the president and the separation of powers.”
“So it's hardly surprising to me, where you have a government that wants to bring those [issues] up, that you have more cases on the emergency docket,” Breyer said.
He also rejected the idea that Supreme Court justices are motivated by partisanship. In an increasingly polarized country, recent polling puts the Court’s favorability among Americans at near historic lows, and the belief that justices favor one party or the other is common.
“I do not believe that the members of the Supreme Court … are there to carry out some political agenda,” Breyer said. “I think those nine people there are trying their best. I really believe that.”
For much of the conversation, Breyer relived some of the toughest education-related cases from his judicial career. More than once, he argued that “you can’t always have bright-line rules” in a sprawling, complex democratic society like the United States. He cited Zelman v. Simmons-Harris, a 2002 case in which the Court ruled 5-4 in favor of a voucher program that gave public funding to private and parochial schools. Breyer voted in the minority, but “there was a big degree of uncertainty in my mind,” he said, in part because of the nuance and interpretive difficulty of the First Amendment’s Establishment Clause protecting religious freedom.
“The religion clauses are very hard for me and for many others to interpret,” he said. Also, he added, “it is a question of a conflict of values, of purposes, in the law that we're suddenly going to have to take a view about.”
He also recalled Mahanoy Area School District v. B.L., a 2021 case in which a student in Pennsylvania was suspended from her school’s cheerleading squad after posting a profane Snapchat message to friends about the school. The Supreme Court ruled 8-1 that the student’s First Amendment rights should prevail, in part because she had been off campus when she sent the message. Breyer wrote the majority opinion, calling public schools the “nurseries of democracy”—a theme he would return to often during Tuesday’ talk—and saying the Court has an interest in protecting even unpopular student speech.
Yet Breyer cautioned that the First Amendment is not absolute, and under other circumstances, the student’s right to speak would have been outweighed by the school’s authority to limit what students can say. What other circumstances? It’s not always clear, he said. People “want a list” spelling out every instance where the First Amendment does and doesn’t apply, Breyer said, “but I don’t have the list. I don’t know everything that’s possible.”
In a similar case from 2007, Morse v. Frederick, the Court ruled 5-4 in favor of a school principal in Alaska who punished a student for holding up a banner that read “Bong Hits 4 Jesus.” Breyer, who was in the minority, said at the time that the Court should not have taken the case, writing in his dissent that “the more detailed the court's supervision [of acceptable student behavior] becomes, the more likely its law will engender further disputes among teachers and students,” which he warned would lead more arguments to move “from the schoolhouse to the courthouse.”
On Tuesday, Breyer reiterated that position. “The Supreme Court doesn’t have to hear every case,” he said, adding that sometimes declining a case “is the better course of wisdom.”
West also asked Breyer about his dissent in the 2007 case Parents Involved in Community Schools v. Seattle, in which the Supreme Court ruled it unconstitutional to use race as a factor in assigning students to schools in order to maintain integration. Writing the plurality opinion, Chief Justice John Roberts ’76, J.D. ’79, famously quipped, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The decision overturned school-desegregation policies in Seattle, Washington, and Louisville, Kentucky, and became a precursor to the 2023 ruling in Students for Fair Admissions v. Harvard, which banned the use of race as a factor in college admissions.
Breyer had retired from the Supreme Court by the time Harvard’s case was decided, but on Tuesday, he said he disagreed with the Court’s conclusion, in both the 2007 and 2023 cases, that the Fourteenth Amendment bars affirmative action. Paraphrasing an argument by the late justice Ruth Bader Ginsburg, he noted that the Fourteenth Amendment was intended to bring formerly enslaved people and their descendants into the American community.
“Obviously, discrimination which is designed to help do that,” he said, “should be treated differently than discrimination that is designed to do the opposite, called invidious discrimination.” More than 150 years after the Fourteenth Amendment was ratified, promising equal protection under the law, racial inequality persists, Breyer said. “We have a big, big, big, big problem, and it will continue.”
