Justice Sotomayor’s 2013 Obamacare Order: The Shadow Docket’s First Case?

When did the Supreme Court’s shadow docket begin? Legal scholars and analysts now debate the origins of this controversial practice, but their disagreements hinge on differing definitions of what constitutes a shadow docket case. The answer depends entirely on how one interprets the term.

My colleague Stephanie Barclay argues that the shadow docket traces back to New Year’s Eve 2013, when Justice Sonia Sotomayor—then serving as a Circuit Justice—granted emergency relief to the Little Sisters of the Poor. This moment is detailed in Chapter 15 of my 2016 book, Unraveled: Obamacare, Religious Liberty, and Executive Power. I will share an excerpt from the book below.

Here, I outline three key reasons why the Little Sisters order may or may not qualify as the first shadow docket entry:

• Scope of relief: The Little Sisters sought an exemption solely for themselves, while other religious non-profits had filed similar lawsuits nationwide. Most courts granted emergency relief to plaintiffs, but only the Little Sisters and Notre Dame University were denied. Notre Dame did not appeal to the Supreme Court and instead complied with the contraception mandate. By contrast, modern shadow docket litigation often seeks broad, universal relief—such as nationwide injunctions or vacatur—rather than one-off exemptions.
• Procedural uniqueness: The Clean Power Plan case, often cited as a shadow docket milestone, began at the D.C. Circuit without prior district court proceedings. The Supreme Court issued a stay before the lower court could rule. In the Little Sisters case, however, both the District Court and the Tenth Circuit had already denied relief after full briefing and consideration. Justice Sotomayor’s order did not short-circuit the appellate process; it aligned with rulings from nearly every other court at the time.
• Nature of the order: On December 31, 2013, Justice Sotomayor issued what is now recognized as an administrative stay:

  IT IS ORDERED that [the government is] temporarily enjoined from enforcing against [the Little Sisters of the Poor] the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, and related regulations pending the receipt of a response and further order of the undersigned or of the Court. The response to the application is due Friday, January 3, 2014, by 10 AM.

  If the shadow docket’s birth is tied to this order, its formal recognition came 21 days later, on January 24, 2014, when the full Court issued a one-paragraph order extending the stay.