The Supreme Court “Shadow Docket,” Explained

As lawsuits challenging Trump administration actions move through the lower courts, the administration has sought emergency Supreme Court review at an unprecedented rate. These so-called shadow docket cases have typically involved a request by the administration to suspend lower court orders that temporarily blocked an administration policy from taking effect. Such orders preserve the status quo during ongoing litigation and reflect findings that the administration’s actions were likely illegal.  

When the Supreme Court pauses a lower court’s order, as it has done frequently at the Trump administration’s request, it can have major ramifications for both the parties to the litigation and the rule of law more broadly.

The Supreme Court has also used the shadow docket process to foreshadow how it may revisit longstanding precedent. For example, months before the Supreme Court overturned Roe v. Wade, the justices refused to block a Texas law prohibiting abortions starting at six weeks of pregnancy — a clear violation of Roe.

The decision in that case, Whole Woman’s Health v. Jackson, not only signaled a major change to the law but also exemplified a change in how the Court is increasingly addressing high-stakes legal issues: The Court handed down its ruling through a one-paragraph, unsigned opinion issued without any oral argument, on the shadow docket.

The ruling was one of the more controversial uses of the Supreme Court’s shadow docket before President Trump took office a second time. It made clear that the justices were willing to use this previously obscure procedural mechanism in ways that their predecessors did not. The trend has continued, as discussed below. The shadow docket is now a significant part of Supreme Court jurisprudence.

What is the shadow docket?

Fundamentally, the shadow docket is where the Court rules on procedural matters, such as scheduling, and considers requests for emergency measures like stays. But its role is changing, and the full story is more complex.

Supreme Court cases take one of two tracks: the merits docket or the shadow docket. Each term the Court decides some 50 to 70 cases on the merits docket. Before rendering a ruling in each case, the Court considers numerous briefs and holds oral argument. It then issues a decision with a lengthy opinion explaining its reasoning, often with concurrences and dissents.

The process supports both informed decision-making and transparency. Almost every Supreme Court case you can name — Brown v. Board of Education, Roe v. Wade, Citizens United v. Federal Election Commission — was decided on the merits docket.

Most orders from the shadow docket, such as due dates for briefs, have little importance to anyone beyond the litigating parties. However, other shadow docket matters, such as requests to halt a lower court’s orders, can have high stakes. The Court might, for example, reinstate a law after a lower court had stopped its implementation.

Cases on the shadow docket, in contrast to those on the merits docket, typically do not receive extensive briefing or oral argument. The decisions are accompanied by little to no explanation and often lack clarity on which justices are in the majority or minority. They are sometimes released in the middle of the night.

Indeed, law professor Stephen I. Vladeck noted in testimony before Congress, “Owing to their unpredictable timing, their lack of transparency, and their usual inscrutability, these rulings come both literally and figuratively in the shadows.”

How has the use of the shadow docket changed in recent years?

Shadow docket cases are sometimes controversial, and the Court’s handling of these hot-button disputes has changed dramatically owing to a confluence of events dating back to the 1980s. This change has transformed the shadow docket from an obscure procedural tool to a matter of public disagreement.

Through the 1970s, when a controversial case emerged on the shadow docket, the individual justice assigned to that part of the country took oral argument and issued a signed order explaining his reasoning, usually without the involvement of the other justices.

This process, incidentally, gave rise to one of the Court’s more bizarre stories, when in 1970 two lawyers hiked six miles into the woods to request that Justice William O. Douglas temporarily restrain Portland, Oregon, police from using violent tactics to quell protests. Douglas held an impromptu oral argument and left his decision on a tree stump: application denied. Supreme Court rules now require that all shadow docket applications be submitted to the clerk’s office.

The Court’s treatment of the shadow docket began to evolve in the 1980s when the Court ceased to formally adjourn during the summer. With the Court technically in session at all times, even when the justices are not physically together, they can address sensitive shadow docket cases in unison, instead of in their individual capacities.

Two significant changes followed. First, once the justices began working collectively on the shadow docket, they stopped holding hearings. The reason for this is not altogether clear — there is nothing in law prohibiting oral argument in cases on the shadow docket, even when decided by all nine justices. Second — and this is a more recent change — the justices have begun to issue far more rulings, and more significant rulings, through the shadow docket.

In recent years, the justices granted relief in contentious shadow docket cases twice as often as they used to. The surge in issuing this relief coincided with Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining the Court and has accelerated during the second Trump administration.

The likelihood that this will continue in the coming years is high. The second Trump administration matched the total number of emergency requests — 19 — in its first five months that the Biden administration made in four years. This is particularly striking because the Obama and Bush administrations combined filed only eight such requests between 2001 and 2017.

Put simply, the Court is making more significant decisions through the shadow docket while having reduced the robustness of the decision-making process.

What are some recent examples of how the Supreme Court has used the shadow docket?

Many of the Supreme Court’s high-profile uses of the shadow docket have involved so-called emergency motions, which often seek to suspend or reverse lower court orders while a case is still in progress. This is supposed to be a rare action, limited to situations in which the lower court rulings could cause irreparable harm if allowed to stand. Critics, however, argue that the Supreme Court is granting relief when the applicant has not truly demonstrated irreparable harm, effectively deciding cases at too early a stage in the litigation, and with a lack of transparency and participation from affected parties.

In the first year of Trump’s second term, the Court used the shadow docket on issues related to immigration, government spending, and civil service job protections, among others. One prominent example is the Court’s decision in Noem v. Perdomo. The Court granted the administration’s request to stay a district court’s order blocking federal officers from conducting investigative stops based on “apparent race or ethnicity,” speaking English with an accent or Spanish, or presence at a site where undocumented immigrants are “known to gather.”

Justice Sonia Sotomayor dissented from the Court’s order, describing it as “yet another grave misuse of our emergency docket. We should not live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job.”

A case where the Court has signaled the likelihood of overruling a longstanding precedent involves the president’s decisions to fire heads of certain independent agencies. In Trump v. Wilcox, the Court allowed the president to terminate members of the National Labor Relations Board and the Merit Systems Protection Board without cause as litigation proceeded. Such firings are in apparent direct contradiction to Humphrey’s Executor, a 90-year-old Supreme Court precedent protecting certain independent agencies from partisan political interference by the executive.

Soon thereafter in Trump v. Slaughter, the Court allowed the president to fire a Democratic member of the Federal Trade Commission without cause, treating the Trump administration’s shadow docket request as a petition for a writ of certiorari before judgment and ordering the parties to brief whether Humphrey’s Executor should be overruled.

There have been a few instances where the Court has rejected the administration’s request for emergency relief. One notable example occurred in Trump v. Illinois, when the Court did not stay lower court decisions blocking the president from federalizing and deploying the National Guard in Illinois.

Earlier this decade, the Court used the shadow docket on issues including gerrymandering, pandemic rules, environmental regulation, and (as described above) abortion. One frequently cited example is Roman Catholic Diocese of Brooklyn v. Cuomo, in which the justices enjoined New York’s capacity restrictions on religious services due to Covid-19. The Supreme Court’s intervention, which reversed the lower courts that had allowed the restrictions to stand, appeared particularly unusual since the attendance limits were no longer in effect and could not cause harm.

Another example came when the justices reinstated Alabama’s gerrymandered congressional map after lower courts had ruled that the plan discriminated against Black voters in violation of the Voting Rights Act. The result is that those maps were in effect for at least the 2022 election. Only two justices in the majority (Kavanaugh and Samuel Alito) provided any reasons for their decision.

Louisiana v. American Rivers was another controversial use of the shadow docket. In its waning days, the first Trump administration issued a regulation preventing states from blocking infrastructure projects that could contaminate rivers, lakes, and streams. When a federal judge vacated the Trump rule and restored the states’ powers, the Supreme Court stepped in on behalf of fossil fuel interests, reinstating the administration’s rule without citing evidence or providing an explanation of how the lower court’s order threatened irreparable harm.

Chief Justice John Roberts, a conservative jurist, raised eyebrows when he joined the Supreme Court’s liberals in dissenting from that ruling. In that dissent, Justice Elena Kagan lamented that the Court had gone “astray,” rendering “the Court’s emergency docket not for emergencies at all.” Rather, the shadow docket had become “only another place for merits determinations — except made without full briefing and argument.”

Supreme Court Shadow Docket Tracker >>

Why is the Supreme Court’s current use of the shadow docket problematic?

Using the shadow docket for nonemergency but monumental decisions runs counter to the tenets of transparency and the rule of law. As many legal scholars have observed, the justices’ usual process of waiting for lower courts to establish facts and weigh in on cases, receiving full briefing, holding oral argument, and providing detailed explanations of their orders, is a key source of the Court’s legitimacy.

So, when the justices increasingly render decisions in a manner that precipitously resolves constitutional or statutory questions with little to no reasoning given, they feed the perception that their rulings are predicated on political ideology rather than judicial principles.

These orders have also sown confusion among lower courts as to which shadow docket decisions count as precedent. The Court has sent mixed signals, suggesting that such decisions are of little precedential value while also rebuking lower courts for not properly interpreting its rulings as the justices intended. For example, in National Institutes of Health v. American Public Health Association, a case about the Trump administration’s termination of research-related grants, Justices Gorsuch and Kavanaugh accused lower court judges of defying shadow docket decisions about the government’s obligation to pay grants, resulting in an apology by a district court judge who said that he “simply did not understand that orders on the emergency docket were precedent.”

Meanwhile, a month earlier in Trump v. Boyle, the Court ruled that “our interim orders are not conclusive as to the merits” but should “inform how a court should exercise its equitable discretion in like cases.”

Pressure from the public and legal scholars who have criticized the Court’s recent use of the shadow docket may return the justices to a more traditional approach. Such a change would benefit the rule of law and the Supreme Court itself.