Seventy years ago, Robert L. Stern and Eugene Gressman published the first edition of Supreme Court Practice, intended “to set forth in a single volume . . . as close as possible to everything, outside of the field of substantive law, that a lawyer would want to know in handling a case in the Supreme Court.” For generations, the treatise (known most commonly as “Stern and Gressman”) was an indispensable staple on every Supreme Court practitioner’s bookshelf (and, rumor has it, the bookshelves of more than a few Justices). The new and improved eleventh edition—published late last year and authored by the late Stephen M. Shapiro (to whom it is dedicated), Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb—drives home why: For an institution governed as much by formal and informal norms as it is by rules and statutes (for instance, the settled—but unwritten—understanding that it takes four Justices to grant a writ of certiorari), an accurate, accessible guide to both the written and unwritten rules of the road was an obvious necessity.
More than that, the authors of SCP were (and remain) in an open and behind-the-scenes dialogue with the Supreme Court Clerk’s Office and the Justices themselves. Questions raised in earlier editions have provoked formal and informal rule changes at the Court, and the editions, in turn, have attempted to keep up with formal and informal developments at One First Street. Indeed, a cursory search for citations to the treatise in reported Supreme Court opinions returns 90 hits, from 1957 to this summer. Simply put, SCP has become more than just a practitioner’s guide; it has become a font of institutional knowledge for an institution that is, notoriously, anything but transparent. And it is a one-stop shop for those trying to figure out all kinds of arcane but potentially significant historical tidbits—such as the last time a Justice heard oral argument in chambers (“apparently” in 1980). In that sense, SCPhas become a necessity for students and scholars of the Court as well.
All of that goes to why SCP is singularly useful. But perhaps the biggest surprise to those who pick it up for the first time is that it is readable, straight through, in ways that most treatises aren’t. That is to say, although the book’s signature value is as a desk reference, later editions have increasingly—if unintentionally—become a textbook for a coherent course (self-taught or otherwise) on “how the Supreme Court conducts its business.” In the tradition of Felix Frankfurter and James Landis’s 1928 tome on The Business of the Supreme Court, someone trying to better understand the Court today (and how it has evolved) could simply march through SCP’s 20 chapters (albeit perhaps skipping the last one—on bar admissions and disbarment), and come out with a deeper understanding of the Court’s practices than (dare I say) even the Justices themselves.
And that is where the eleventh edition really shines. It does not just smooth the Court’s rough edges and provide guidance for everything from the mundane to the macro; it provides ever more of a window into an increasingly significant part of the Court’s substantive work: what Will Baude has labeled “the shadow docket,” i.e., the (growing number of) significant rulings that the Justices hand down through orders—especially those granting or denying applications for stays, injunctions, and other forms of emergency relief.
To be sure, for as long as the Court has existed, it is had a procedural docket. As Ross Davies noted, Congress required a lone Justice to sit for a rump Term every August from 1802 to 1839—to dispose of, among other things, any pending procedural matters that did not require the full Court’s attention. But there’s no denying that Justices’ rulings on orders have drawn more attention in recent years—or that they have become more controversial. In October 2020 alone, in the run up to the November elections, the Court handed down 10 shadow docket rulings on applications to grant (or lift) lower-court stays pending appeal, eight of which provoked public dissents. During the October 2019 Term, 11 shadow docket rulings alone provoked four public dissents, compared to only 12 of the Court’s “merits” cases. Simply put, the Justices are doing more to disrupt the status quo in the lower courts pending appeal than they ever have before; their machinations are provoking more disagreements than they ever have before; and (almost) all of this is happening without any opinion for the Court explaining why the Court is ruling the way it is in a particular case—let alone where this broader uptick is coming from or why.
To be sure, the eleventh edition of SCP does not purport to answer these questions. But as much as any other source, it provides a fair amount of evidence and a whole bunch of clues—from the Court’s quiet move to a “continuous” Term in 1979 (which allowed the full Court, rather than a single Justice, to resolve contentious applications even during the summer); to the increasing frequency with which all contentious applications have been referred to the full Court; to the slow but steady decline of in-chambers arguments and opinions; to the subtle shift in how at least some of the Justices have applied the traditional four-factor test for emergency relief. To their credit, the authors do not draw specific conclusions from these individual data points. But they make it possible for others to do so—and to attempt to draw broader lessons from patterns that would be all-but impossible to even see without their efforts.
Critically, though, the shadow docket comes into clearer view thanks to a specific slice through SCP’s 1600 pages, especially its chapter devoted to stays, injunctions, and bail. And although increased popular and academic attention focuses on the shadow docket today, it could shift to another hitherto esoteric aspect of the Court’s work tomorrow—especially if conversations about judicial reforms become more than hypothetical in 2021. Whatever happens, SCP will surely remain first among equals when it comes to legal treatises—as comprehensive and accessible a guide to the actual workings of the Supreme Court as is reasonably possible, and one that already does, and should, provide real value and insights to far more than those of us who consider ourselves SCOTUS nerds. And for that, we owe a debt of gratitude to Stern, Gressman, and their contemporary successors.