The fear, I say in reply, is that Thomas or Alito would have used the secretive shadow docket, which does not require a vote or deliberations, or written majority or minority reports.
https://www.theguardian.com/commentisfree/2021/aug/31/supreme-court-us-cases-shadow-docket
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Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.
But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.
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