Shadow docket

Based on Wikipedia: Shadow docket

In September 2021, the Supreme Court of the United States allowed one of the most restrictive abortion laws in the country to take effect. The Texas Heartbeat Act banned abortions after about six weeks of pregnancy—before many people even know they're pregnant. The Court's decision came at midnight, in a single paragraph, unsigned, with no oral arguments, no full briefing, and almost no explanation. This is the shadow docket in action.

The phrase sounds like something from a spy novel, and that's partly the point.

What Makes a Decision "In the Shadows"?

When most people picture the Supreme Court at work, they imagine the familiar drama: lawyers in formal attire standing at a lectern, justices in black robes peppering them with questions, thick legal briefs exchanged over months, and finally, a lengthy written opinion explaining exactly why the Court ruled the way it did. That's the merits docket—the Court's main stage.

The shadow docket is everything else.

It encompasses the emergency orders, the stays, the injunctions, and the quick procedural decisions that the Court issues without the usual fanfare. These rulings typically arrive within days of an application being filed, sometimes within hours. They're usually unsigned. They rarely explain the legal reasoning. And for most of American history, they dealt with housekeeping matters—granting a party an extra week to file paperwork, or deciding whether to extend the time for oral arguments.

The term itself was coined in 2015 by William Baude, a law professor at the University of Chicago. He noticed something troubling: the Court was issuing "noteworthy rulings" through this fast-track process, rulings that were "both debatable and mysterious." The justices weren't explaining their legal basis. It wasn't even clear whether individual justices agreed with the decisions being issued. Baude argued that understanding the Supreme Court required understanding this hidden dimension of its work.

The Ordinary Way Courts Work

To understand why the shadow docket matters, you need to understand how the normal process works—and why that normal process exists.

Every year, somewhere between seven and eight thousand petitions arrive at the Supreme Court, asking the justices to hear a case. The overwhelming majority are rejected. Only about eighty cases per term make it through, and that happens because at least four justices—the so-called "rule of four"—vote to grant what's called certiorari, the formal term for agreeing to review a lower court's decision.

Once a case is accepted, both sides submit extensive written arguments. Outside groups with an interest in the outcome, called amici curiae (Latin for "friends of the court"), file their own briefs. The whole process takes months. Then comes oral argument, where the justices publicly question the lawyers and probe the weaknesses in their positions.

Finally, the Court issues a decision. The majority opinion is signed by a specific justice and runs for dozens of pages, sometimes more. It walks through the facts, the relevant laws, the precedents, and the reasoning that led to the conclusion. Justices who agree with the outcome but not the reasoning write concurrences. Those who disagree write dissents. Everything is on the record.

This process exists for reasons beyond mere tradition. The extensive briefing helps the justices understand complex issues. The oral arguments let them test their thinking against skilled advocates. The written opinions create precedent that lower courts can follow. And the transparency lets the public, the legal community, and future courts understand and evaluate the Court's reasoning.

The shadow docket dispenses with all of this.

How Emergency Orders Actually Work

The mechanics of the shadow docket are straightforward, even if their implications are not.

When someone needs urgent action from the Supreme Court—say, to stop a law from taking effect or to prevent an execution—they file an application with the "circuit justice," the specific Supreme Court justice assigned to oversee that geographic region of the country. Each justice is responsible for one or more of the thirteen federal circuits.

That circuit justice has three options. They can grant the request themselves. They can deny it themselves. Or they can refer it to the full Court for a decision.

Either way, the timeline is compressed. Decisions come in a week or less. Sometimes days. Sometimes hours. The application might arrive late on a Friday; the ruling might come at midnight on Sunday.

The Supreme Court has articulated four criteria for granting emergency stays. First, there must be a "reasonable probability" that at least four justices would agree to hear the full case on the merits. Second, there must be a "fair prospect" that a majority would ultimately rule in the applicant's favor. Third, the applicant must show they'll suffer irreparable harm if the stay isn't granted—the kind of harm that can't be fixed later with money or other remedies. Fourth, in close cases, the justice should balance the competing harms to both sides and the public interest.

These standards sound rigorous. In practice, the Court rarely explains how it applied them to reach its conclusion.

The Transparency Problem

Shadow docket orders are almost always unsigned and unexplained. The public doesn't know which justices voted for or against the decision. Sometimes you can piece together fragments of information—a justice might write a short concurrence or dissent, revealing their position—but the majority's reasoning remains hidden.

Consider the numbers from the Court's term running from August 2020 to July 2021. There were 150 emergency applications in total, with 73 referred to the full Court. The exact vote count was known in only 14 of those 73 cases. That's less than twenty percent. For the other eighty percent, Court watchers could only speculate about which justices sided with whom.

During that same period, the Court issued 56 decisions on the merits docket. Every single one of those came with full written opinions, signed by the authoring justice, with vote counts on the record.

This asymmetry troubles many observers. As Nicholas Stephanopoulos, a law professor at Harvard, has put it: "The idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about. If courts don't have to defend their decisions, then they're just acts of will, of power. They're not even pretending to be legal decisions."

When Emergency Became Routine

For most of the Supreme Court's history, the shadow docket was a backwater. Emergency orders were rare and genuinely urgent. The Court used this process for things like staying the 1953 executions of Julius and Ethel Rosenberg, convicted spies for the Soviet Union, or halting the Nixon administration's bombing of Cambodia in 1973.

These were extraordinary interventions for extraordinary circumstances.

That changed dramatically in 2017.

During Donald Trump's presidency, the Department of Justice began seeking emergency relief from the Supreme Court at an unprecedented rate. Over Trump's four years in office, the Justice Department filed 41 emergency applications—more than five times the combined total from the previous sixteen years under Presidents Bush and Obama, who together filed just eight.

The Court granted 28 of the Trump administration's requests. In the prior sixteen years, only four such requests had been granted total.

This wasn't about routine procedural matters. The shadow docket became a battleground for some of the most contentious policies of the Trump era: the travel ban targeting predominantly Muslim countries, the diversion of military funds to construct a border wall with Mexico, the prohibition on transgender Americans serving openly in the military, the resumption of federal executions after a seventeen-year hiatus, and restrictions on asylum seekers from Central America.

Each of these policies had been challenged in lower courts. Each had been blocked by a judge somewhere along the way. And each time, the Trump administration went straight to the Supreme Court, seeking emergency stays to let the policies take effect while litigation continued.

The pattern continued after Trump left office, though with reversed polarity. The Court used the shadow docket to block Biden administration policies, ending a federal eviction moratorium during the ongoing pandemic and nullifying an attempt to end the "Remain in Mexico" policy for asylum seekers. That latter decision came in an order just two paragraphs long.

A New Kind of Constitutional Law

Something fundamental shifted in how the Court used these emergency procedures. It wasn't just that emergency applications became more common. The Court started using them to create new legal rules.

Steve Vladeck, who holds the Charles Alan Wright chair of federal courts at the University of Texas School of Law and has emerged as one of the shadow docket's most persistent critics, wrote in the New York Times: "Until this term, it would have been unheard-of to articulate a new constitutional rule while issuing an emergency injunction to enforce it."

This is worth pausing on. Traditionally, emergency orders weren't supposed to create new law. They were supposed to preserve the status quo while the normal legal process played out. A stay might pause a lower court ruling temporarily, but the substantive legal questions would get resolved later through full briefing and argument.

Now, Vladeck argued, "a majority of the justices are increasingly using procedural tools meant to help them control their docket to make significant substantive changes in the law, in defiance not only of their own standards for such relief, but of fundamental principles of judicial decision making."

The practical effect was enormous. Policies that might otherwise have remained blocked for years while working through the legal system went into immediate effect. Constitutional questions that might have received months of careful analysis instead got resolved in days, in unsigned orders, without explanation.

The Justices Respond

The shadow docket has become contentious within the Court itself.

Justice Elena Kagan has been particularly vocal. In her dissent in the 2021 Texas abortion case, she wrote that the Court's "shadow-docket decision-making" was "every day becoming more unreasoned, inconsistent, and impossible to defend."

Justice Samuel Alito, by contrast, has pushed back against the very terminology. In a speech at Notre Dame, he called the phrase "shadow docket" sinister, saying it was "used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way." Senator Ted Cruz, who served as solicitor general of Texas before entering politics, adopted a similar line: "Shadow docket, that is ominous. Shadows are really bad, like really, really bad."

The criticism goes beyond rhetoric. What troubles Kagan and other dissenters is the inconsistency—the sense that the same standards are being applied differently depending on who's asking. The government, particularly the federal government, seemed to have special access. Applications that would take weeks for ordinary litigants got resolved in days when the Justice Department filed them.

William Baude, who coined the term, has acknowledged this pattern: "The government, especially the federal government, has a special ability to get the court's attention."

Accountability and Trust

In 2005, during his confirmation hearing to become Chief Justice, John Roberts expressed hope that "we haven't gotten to the point where the Supreme Court's opinions are so abstruse that the educated layperson can't pick them up and read them and understand them."

Nine years later, New York Times Supreme Court correspondent Adam Liptak offered a pointed response to that aspiration, writing that when it came to the shadow docket, the Court's opinions were "not abstruse. They are absent."

This absence has consequences beyond legal arcana. Courts derive their legitimacy from public perception of their integrity and fairness. Unlike Congress, the Supreme Court can't pass laws. Unlike the President, it can't command armies. Its power rests almost entirely on the belief that it's applying law rather than exercising raw political will.

Unexplained decisions undermine that belief. As David Cole, the national legal director of the American Civil Liberties Union and a professor at Georgetown Law, has observed: if the Court can "make significant decisions without giving any reasons, then there's really no limit to what they can do."

In 2021, both chambers of Congress held hearings on the shadow docket—the first legislative scrutiny of this practice. In 2024, Senate Democrats introduced legislation that would require the Court to provide written explanations for emergency rulings and disclose how each justice voted.

The Defense

Defenders of the shadow docket argue that emergency procedures exist for good reason. Some legal questions genuinely are time-sensitive. When an execution is scheduled for Tuesday and it's already Sunday, there's no time for months of briefing. When a nationwide policy is taking effect on Friday, waiting for the normal process means waiting while the policy reshapes American life.

Edmund LaCour, the solicitor general of Alabama, has argued that "time-sensitive matters" make it "inappropriate to use the usual channels" and that the shadow docket is important to keep the Court functioning properly.

There's also a question of scale. The Supreme Court receives thousands of petitions each year but can only hear about eighty cases on the merits. As Justice Felix Frankfurter explained back in 1950, "if the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive."

That was true in 1950. Whether it remains true in an era when the shadow docket is being used not just to manage caseload but to reshape constitutional law is another question entirely.

The 2025 Surge

The pattern that emerged during the first Trump administration appears to have intensified during his second. In early 2025, the New York Times surveyed 65 sitting federal judges about the Supreme Court's use of the shadow docket. Forty-seven of them—nearly three-quarters—disagreed that the Court had made appropriate use of emergency procedures since Trump's return to office. Only twelve said the shadow docket had been used appropriately.

The specific cases tell the story. In April 2025, the Court granted a stay in a case called J.G.G. v. Trump. In May, A.A.R.P. v. Trump. June brought D.V.D. v. Department of Homeland Security. The applications kept coming through the summer and fall: cases involving federal workers, immigration policy, and state-federal conflicts. By October 2025, the Court had granted stays in at least ten significant cases, all involving the new administration.

Each decision came quickly. Each came without full briefing. Each came without oral argument. And each came without a written opinion explaining the Court's reasoning.

What's at Stake

The shadow docket forces a fundamental question about what courts are for.

If the purpose of judicial decisions is simply to resolve disputes—to declare winners and losers—then perhaps explanation is optional. The parties know who won. That's what matters.

But if courts serve a broader function—if their role includes developing coherent legal doctrine, providing guidance to lower courts, allowing public scrutiny of judicial reasoning, and maintaining the legitimacy of the legal system—then explanation is essential. It's not a formality. It's the substance of what makes a judicial decision different from an arbitrary exercise of power.

The Economist has argued that the shadow docket displays a "deficit of transparency and accountability." Vladeck has pointed to decisions "handed down at all hours of the day, with little opportunity for public involvement or scrutiny," adding: "For a Court whose legitimacy depends largely on the public's perception of its integrity, the growth of unseen, unsigned, and unexplained decisions that disrupt life for millions of Americans can only be a bad thing."

The name itself—shadow docket—captures something real. These decisions happen outside the light of normal judicial process. They escape the scrutiny that ordinarily applies to the most consequential legal rulings in American life. And increasingly, they're not exceptional interventions in exceptional circumstances. They're becoming routine.

Whether that transformation represents a pragmatic adaptation to modern governance or a troubling erosion of judicial norms may be the defining question about the Supreme Court for years to come.