The Supreme Court’s so-called “shadow docket” is not a new
phenomenon. The justices have long considered cases on an emergency
basis. However, the practice has gained greater significance since
Donald Trump’s Presidency.
What Is the Shadow Docket?
The Supreme Court’s emergency docket is separate from its
regular merits docket. It is generally reserved for emergent
matters that require immediate Court intervention, such as staying
an execution, halting a deportation, or preventing implementation
of a lower court order. For instance, cases often involve emergency
requests for a stay, which is a temporary suspension of a
lower court order and is intended to prevent irreparable harm while
a case proceeds through the courts.
Unlike a typical Supreme Court case, emergency matters are
decided without full briefing and oral argument. In many cases,
they are decided without a written opinion explaining the Court’s
reasoning. Summary orders also typically don’t list how each
justice voted. Hence, the term “shadow docket,” which University of
Chicago law professor William Baude coined in 2015.
Rise in Emergency Matters Before the Court
The Supreme Court’s shadow docket has come under scrutiny in
recent years, largely because of its exponential growth and the
role it has played in deciding controversial issues like voting
rights, abortion, and immigration. In the 2023-24 term, there were
44 matters on the emergency docket. In the 2024-25 term, the list
grew to 113 matters.
While executions and deportation orders still comprise a large
portion of the Court’s emergency matters, the shadow docket has
been increasingly used to address challenges to presidential orders
and actions. Since the end of the term, the justices have issued
several rulings concerning legal challenges to actions by President
Donald Trump. The majority have been 6-3 rulings, with Justices
Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson
dissenting.
- In Trump v. American Federation of Government
Employees, the Court stayed a preliminary injunction
preventing the firings of government employees in many federal
agencies.
- In McMahon v. New York, the justices lifted a district
court’s preliminary injunction preventing mass terminations at the
Department of Education.
- In Trump v. Boyle, the Supreme Court overturned a
preliminary injunction halting the firing of three members of the
Consumer Product Safety Commission who were protected from removal
except when there was “cause” for firing.
The rise in emergency rulings is also fueling confusion
regarding whether shadow docket rulings should be regarded as
binding precedent. Merits decisions issued by a majority of
the Court carry precedential weight, which means that they
determine the outcome of future cases involving the same issues.
However, non-merits orders have traditionally not been treated as
binding on the lower courts.
Critics have also raised concern about the Court
abandoning long-standing precedent without full briefing or
oral argument. Justice Kagan wrote a dissent in Trump v. Wilcox, joined by Justices
Sotomayor and Jackson, lamenting that “[o]ur emergency docket,
while fit for some things, should not be used to overrule or revise
existing law.” She explained that the Court’s ruling “allows the
President to overrule Humphrey’s by fiat.”
Critics also contend that the shadow docket allows the justices
to make consequential (and often controversial) decisions without
the public scrutiny typically associated with its merits cases. The
lack of oral arguments and written decisions also makes it
challenging for the public and legal scholars to analyze the
Court’s reasoning. As Professor Erwin Chemerinsky wrote on SCOTUSblog, “’Because I said so’ never is
persuasive or satisfying. And it certainly should not be regarded
as acceptable when it is the Supreme Court resolving important
issues – even matters of life and death – without the slightest
explanation.”
So, what’s the solution, assuming there is one?
To start, the Court could be more transparent by issuing full
opinions, particularly when significant legal issues are at stake
or precedent is being reconsidered. If justices can write lengthy
dissents, writing a majority opinion doesn’t seem like a
particularly big ask. The justices could also be more restrictive
when considering what cases to decide on an emergency basis. In
many recent matters brought before the Court by the Trump
Administration, critics of the shadow docket contend that the harm
to the government in delaying Supreme Court relief until the case
can be heard on the merits would be minimal.
While legislation has been introduced to address the shadow
docket, it has failed to advance. Congressional action remains
unlikely in today’s political climate. Accordingly, the Court would
likely have to impose these restrictions on itself. With the
emergency docket poised to continue to play a significant role next
term, all eyes will be on the justices.
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