A hot topic for the U.S. Supreme Court is its “shadow docket,” where cases — sometimes consequential cases — are decided without full briefing or oral argument.

The subject has gotten substantial attention of late, both inside and outside the Court.  (See, e.g., Adam Liptak in the New York Times hereWhole Woman’s Health v. Jackson (2021) 141 S.Ct. 2494, 2500 (dis. opn. of Kagan, J.) [ruling about abortion restrictions “illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process”].)  But disagreements about shadow docket adjudications are nothing new.  (See, e.g., California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater (1981) 454 U.S. 90, 94 (dis. opn. of Stevens, J.) [“Without the benefit of full briefs and arguments I would not answer the question” whether the constitution requires proof beyond a reasonable doubt in obscenity cases].)

While not attracting as much attention, the California Supreme Court has made shadow docket rulings, too.  We’ve written about some of them in parts one and two of this series.  This third installment deals with another example.  Unlike the other two, which discussed categories that each contained multiple cases, this one is sui generis.

California’s constitution has long required the state’s governor to get the recommendation of a majority of the Supreme Court’s justices before he or she can grant clemency to anyone who has been “twice convicted of a felony.”  In 2018, the court issued an administrative order, and published it in the official reports, that gave what the court called a first, “comprehensive explanation of our understanding of the nature of our [constitutional clemency] function.”  (Procedures for Considering Requests for Recommendations Concerning Applications for Pardon or Commutation (2018) 4 Cal.5th 897, 897.)

The order came without notice.  It was not connected to any particular gubernatorial request for a clemency recommendation.  There was no briefing — e.g., by the Governor, a clemency applicant (see here), the Attorney General, or the State Public Defender — nor was there an opportunity for public comment.  In short, it was a shadow docket decision.

And the order was quite significant.  It announced a deferential standard of review:  the court has a “limited” role in the clemency process, not to decide “on the merits, that a particular convict should be shown mercy, or for some other reason granted clemency,” but only “to provide a check on potential abuses of the power conferred on the executive.”  (Proceduressupra, 4 Cal.5th at p. 899.)

Moreover, this shadow docket document essentially overruled one of the court’s earlier opinions.  The court didn’t expressly say “overruled,” but it did “acknowledge” that the earlier case — In re Billings (1930) 210 Cal. 669 — was not “consistent with” the newly stated deferential standard and was a matter in which the court had taken “a different approach.”  (Proceduressupra, 4 Cal.5th at p. 900.)

Speaking of different approaches, the court’s sua sponte statement of the standard of review for clemency recommendation requests contrasts with the way the court determined how to handle the confidentiality of its clemency records.  Instead of simply issuing an administrative order, the court last year published a proposed order and gave 50 days for the Governor, the First Amendment Coalition (which had previously filed motions to unseal clemency records), and “[a]ny other interested person” to critique the proposal.  This past May, after reviewing what it said were “informative and constructive” public comments, the court finalized its policy.