Within the Sound of Silence: Reassessing the Role of Reasoning in Judicial Decision-Making
| Pages | 1-24 |
| Date | 01 April 2025 |
| Published date | 01 April 2025 |
| Author | Talia Fisher |
Within the Sound of Silence
1
Cambridge Law Review
(2025) Vol 10, Issue 1, 1–24
Within the Sound of Silence: Reassessing the Role
of Reasoning in Judicial Decision-Making
TALIA FISHER
ABSTRACT
The growing reliance of the US Supreme Court on unexplained orders, commonly known as
their ‘shadow docket’, has emerged as a major concern, generating strong criticism for under-
mining the traditional expectation that j udges provide detailed justifications for their rulings.
Without presuming to take a stance on the legitimacy of shadow dockets or the motivations
that inform them, the increasing reliance on unexplained orders encourages a re-evaluation
of the role and function of judicial reasoning within t he broader spectrum of case law. This
article re-examines the assumption that providing reasons for judicial judgments is inherently
and universally desirable. It explores how providing reasons can sometimes conflict with other
fundamental values underlying the legal process and argues for considering limits on judicial
reasoning that extend beyond pragmatic concerns related to judicial economy (efficient man-
agement of judicial resources). The article highlights three key areas where such limits on
reason-giving might be warranted. First, witness credibility assessments, in which the verbal
articulation of the underlying reasons might distort the decision-mak ing process. Secondly,
‘hard cases’, in which the risk of crafting detrimental precedents suggests a need to separate
the resolution of specific cases from the development of broader legal doctrines, as illustrated
by the US Supreme Court’s handling of
Bush v Gore
. Thirdly, situations in which judicial
silence speaks louder than the articulation of reasons and can serve as a catalyst for democratic
deliberation, as manifested in the Supreme Court’s handling of the 2014 same-sex marriage
cases. Rather than advocating for Aristotelian intuition-based adjudication (where a judge’s
practical wisdom (
phronesis
) and cultivated sense of justice guide decisions, sometimes be-
yond explicit legal rules), the article emphasises the need to balance the benefits of judicial
reason-giving with an awareness of its limitations and proposes a more strategic and deliberate
approach to providing reasoned judgments.
Keywords: reasoned judgments, shadow docket, hard cases, constitutional dialogue, proce-
dural justice
Anny and Paul Yanowicz Professor of Human Rights at the Faculty of Law, Tel Aviv University. I am deeply grateful
to Eyal Zamir for his wonderful and generous suggestions, and to Miri Gur Arye and the participants in the Criminal
Law Workshop at the Hebrew University for their thoughtful comments. My thanks also go to Naama Lipschits, Yael
Meskin, and Nadav Zak for their dedicat ed research assistance. I am profoundly grateful to Wednesday Eden and the
editorial team of the Cambridge Law Review for their superb editorial work.
2
Cambridge Law Review (2025) Vol 10, Issue 1
I. INTRODUCTION
‘
Judicial decisions are reasoned decisions.
’
Rita v United States
1
The US Supreme Court is currently facing mounting criticism for its tendency to issue un-
signed and unexplained orders,colloquially referred to as the Court’s ‘shadow docket’.
2
A
substantial proportion of its judicial decisions are made without providing the reasoning be-
hind them.
3
The resort to shadow docket practices, particularly in contentious areas like access
to abortion, immigration res trictions, capital sentencing, COVID-19 policies, and election
procedures, has recently sparked academic debate.
4
The issue came into the public spotlight
during Justice Amy Coney Barrett’s confirmation hearing, where she identified the Supreme
Court’s shadow docket as a ‘hot topic in the last couple of years’.
5
Critics contend that the
Court’s decision to forego the detailed reasoning that characterises its formal merits docket,
even in highly influential cases, circumvents an essential aspect of the act of judging.
6
An illus-
trative example is the January 2022 emergency order blocking the Occupational Safety and
Health Administration’s COVID-19vaccination-or-testing mandate for large employers, a
per
curiam
decision which directly impacted nearly one-quarter of the country’s population.
7
The COVID-19 pandemic marked the height of the US Supreme Court’s reliance
on shadow docket practices.
8
It also provided the context for another case that illuminates the
issue of reasoned judicial decisions. In January 2021, during the height of the pandemic,
1
Rita v United States
551 US 338, 356 (2007). See also
Chavez-Meza v United States
585 US 109, 113 (2018).
2
Stephen I Vladeck, ‘Putting the “Shadow Docket” in Perspective’ (2 023)
17 Harvard Law & Policy Review 289, 289.
The term ‘shadow docket’was coined by William Baude: see William Baude, ‘Foreword: The Supreme Court’s Shadow
Docket’ (2015)9 New York University Journal of Law and Liberty1,1.
3
Richard J Pierce, ‘The Supreme Court Should Eliminate Its Lawless Shadow Docket’ (2022) 74 Administrative Law
Review 1,10 (‘We now have a situation in which a high proportion of major judicial decisions are made by the Supreme
Court without providing any reasons for the decisions.’).
4
A symposium dedicated to the Supreme Court’s shadow docket was held in 2023: see Leslie C Griffin, ‘The Shadow
Docket: A Symposium’ (2023) 23 Nevada Law Journal 669, 669 (‘Everyone is talking about the Supreme Court's shadow
docket.’); Stephen Vladeck,
The Shadow Docket: How the Suprem e Court Uses Stealth Rulings to Amass Power and
Undermine the Republic
(Hachette Book Group2023);Caroline Fredrickson, ‘Will American Democracy Last in Light
of the Shadow Docket?’ (2023)23 Nevada Law Journal 727; Nicholas D Conway and Yana Gagloeva, ‘Out of the
Shadows: What Social Science Tells Us About the Shadow Docket’ (2023) 23 Nevada Law Journal 673; Jenny-Brooke
Condon, ‘The Capital Shadow Docket and the Death of Judicial Restraint’ (2023) 23 Nevada Law Journal 809; Rachael
Houston, ‘Does Anybody Really Know What Time It Is?: How t he Supreme Court Defines “Time” Using the
Purcell
Principle’ (2023)23 Nevada Law Journal 769.
5
See
Andrew J Wistrich, ‘Secret Shoals of the Shadow Docket’ (2023)23 Nevada Law Journal 863, 943, fn 4. Another
major public encounter with the Court’s shadow docket an d practice of issuing sparsely explained orders was through
the ruling on the Texas Heartbeat Act: see
Whole Woman’s Health v Jackson
141 S Ct 2494 (2021), cited in Vladeck,
‘Putting the “Shadow Docket” in Perspective’ (n 2) 290.
6
Harvard Law Professor Nicholas Stephanopoulos has argued that unexplained, unreasoned court orders contradict
fundamental judicial pri nciples, equating them to displays of power rather than legal rulings: ‘Missing from Supreme
Court’s Election Cases: Reasons for Its Rulings’ (
National Freedom of Information Coalition
)
<https://www.nfoic.org/blogs/missing-supreme-courts-election-cases-reasons-its- rulings/> accessed 24 March 2025. See
also Chad M Oldfather, ‘Writing, Cognition, and the Nature of the Judicial Function’ (2008) 96 Georgetown Law Journal
1283, 1285 (‘… preparation of a written opinion might be deemed an essential component of a legitimate judicial de ci-
sion’).
7
National Federation of Independent Business v Department of Labor, Occupational Safety and Health Administration
142 S Ct 661, 662 (2022) (
per curiam
), cited in Vladeck, ‘Putting the “Shadow Docket” in Perspective’ (n 2) 294.
8
See Thomas P Schmidt, ‘Orders Without Law’ (2024) 122 Michigan Law Review 100 3.
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