...Work at the Supreme Court is divided into two main categories. One is deciding the cases it hears on the merits: the 70-some cases each year that the court selects for extensive briefing, oral argument and a substantial written opinion, sometimes with dissents. These are the cases we hear about in the news.
The orders docket includes nearly everything else the court must decide — which cases to hear, procedural matters in pending cases, and whether to grant a stay or injunction that pauses legal proceedings temporarily. There are no oral arguments in these cases and, as in Mr. Warner’s situation, they are often decided with no explanation.
...This lack of transparency has a practical impact. Because the court doesn’t issue opinions in these cases, lawyers don’t know what legal standards to apply when litigating the issue again in the future.
These procedural issues also affect the lower courts, which are supposed to follow Supreme Court precedent. But because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements. The orders can influence the substance of litigation, too, because a key factor in procedural cases is whether the claim has merit.
To be sure, there are good reasons for the court to proceed quickly and without much explanation in many of these cases. These disputes happen fast, and the justices may not want to commit to a public explanation that they haven’t had time to fully consider. But even modest changes would provide valuable guidance.
What could the court do?