Thomas P. Schmidt and Kellen Funk, Columbia Law School, have posted The Equity Docket, which is forthcoming in the NYU Law review:
The Supreme Court has two sides. On its ordinary docket, the Court answers questions of law after briefing and oral argument. On its extraordinary docket, the Court fields applications from litigants asking it to equitably set the status of a new law or executive action while a lawsuit is pending. Only a decade ago, the equity side was an obscure backwater of Supreme Court practice; today it is where the Court confronts some of the most contested and consequential public law disputes. This aspect of the Court’s work has taken on various labels—the shadow docket, emergency docket, interim docket, to name a few. This Article proposes the “equity docket.” That term best captures what is distinctive about this growing part of the Court’s business, and helps us to get a normative handle on where the Court has gone right—and wrong.
Any judicial practice grounded in equity will be vulnerable to the charges of arbitrariness and lack of transparency; those critiques are as old as John Selden’s rebuke about the chancellor’s foot. And variants of those critiques have been ubiquitous in discussions of the equity docket. Historically, though, equity was able to reform itself successfully in response to these charges. Our basic contention is that the Court has assumed a far-reaching new form of equitable jurisdiction without also accepting the historical guardrails that both limited and legitimated equity.
The Article makes three contributions. First, it links the emergence of the equity docket to the Court’s broader engagement with the history of federal equity in recent years—what some have called the “new equity.” Second, it argues that the Court has lost sight of important constraints that kept equity in an adjectival position. And finally, it suggests that the Court has impoverished the inputs of equitable decisionmaking by relying almost exclusively on hastily formed predictions about the merits. In place of the Court’s current approach, we propose a model of a more objective, “filtered” conscience, drawn from the history of equity, that would give proper weight to precedent and keep the equity docket from engulfing the Court.
--Dan Ernst
