SHADOW Act

This Act may be cited as the “Supreme Court Honesty and Disclosure of Orders and Writs Act” or the “SHADOW Act”.

Section 2101(f) of title 28, United States Code, is amended—

(1) by striking “In any case” and inserting “(1) In any case”; and

(2) by adding at the end the following new paragraphs:

“(2) In determining whether to grant or deny a stay under this subsection the Supreme Court or a justice thereof shall—

(A) require a showing of specific, concrete, and irreparable injury that is distinct from and greater than any harm resulting solely from the operation of the stay that is being challenged;

(B) ensure that the determination under this section does not entail findings or conclusions on the ultimate merits of the case or the likelihood of a particular party prevailing; and

(C) provide that any such stay shall not be accorded precedential effect except to the extent necessary to resolve the dispute between the parties in which the stay was entered.

(3)

(A) The Supreme Court or justice shall set forth on the record the basis for an issuance or denial of a stay under this section, including—

(i) whether, absent such relief, the applicant will suffer an injury described in paragraph (2)(A);

(ii) whether issuance of such relief will substantially injure any other party interested in the proceeding; and

(iii) whether the determination to issue or deny such stay was in the public interest.

(B) The basis under subparagraph (A) shall be published on the public docket of the Supreme Court at the time of the issuance or denial of such stay.

(C) The requirement under subparagraph (B) shall not apply if the Supreme Court or a justice thereof determines that immediate action is necessary to prevent imminent or irreparable harm. If there is such a need, the basis under subparagraph (A) shall be published on the public docket of the Supreme Court not later than 7 days after the issuance or denial of such stay.

(4) For purposes of this subsection, a “stay” includes any order of the Supreme Court or a justice thereof granting or denying relief to suspend, modify, or preserve the effect of a lower court’s order granting or denying injunctive relief.”.

Section 1651 of title 28, United States Code, is amended by adding at the end the following new subsection:

“(c)

(1) The Supreme Court or a justice thereof may only issue a writ enjoining any party from the conduct specified in the writ, if the Court or a justice thereof determines that enjoining such conduct is necessary as a result of a critical and exigent circumstance to protect an indisputably clear legal right that is at issue in the case.

(2)

(A) The Supreme Court or a justice thereof shall set forth on the record the reasons for the determination made under paragraph (1) including identifying, if applicable, the legal right at issue in the case and why it is indisputably clear, the motion for a writ.

(B) The reasons under subparagraph (A) shall be published on the public docket of the Supreme Court at the time at which the motion for the writ is granted or denied.

(C) The requirement under subparagraph (B) shall not apply if the Supreme Court or a justice thereof determines that immediate action is necessary to prevent imminent or irreparable harm. If there is such a need, the basis under subparagraph (A) shall be published on the public docket of the Supreme Court not later than 7 days after the writ is granted or denied.”.