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Most Americans know the Supreme Court for its landmark rulings on cases like Brown v. Board of Education or Roe v. Wade. These decisions come after months of deliberation, public oral arguments, and detailed written opinions that explain the legal reasoning.
But there’s another way the Court makes decisions. It’s faster, more secretive, and increasingly powerful.
Law professor William Baude gave it a name in 2015: the shadow docket. The term describes thousands of orders the Court issues outside its normal process. For most of the Court’s history, these orders handled routine paperwork – filing extensions, minor procedural questions, the occasional emergency.
Since 2017, the shadow docket has become a venue for major rulings on abortion, immigration, public health mandates, and federal executions. The Court makes these decisions in days or weeks instead of months, usually without oral arguments or detailed explanations.
The shift has sparked intense debate about transparency, accountability, and whether the Court is making consequential policy decisions without the safeguards that help give judicial rulings their legitimacy.
The Two Tracks
The Supreme Court processes cases on two parallel tracks. The differences between them go beyond speed – they represent fundamentally different approaches to judicial power.
The Merits Docket
The merits docket is the Supreme Court most people recognize. The Court receives more than 7,000 petitions each year but accepts only 60 to 70 cases for full review. At least four justices must vote to grant certiorari – a formal order requesting the case records from a lower court.
Cases that make it onto the merits docket follow a months-long process:
Extensive briefing. Both sides submit comprehensive written arguments. Outside groups interested in the outcome file amicus curiae briefs to provide additional perspectives.
Oral argument. The Court holds a public hearing where lawyers present their cases and answer questions from the justices. These sessions are now audio-recorded and released to the public.
Deliberation and opinion. The justices meet privately to discuss the case and vote. One justice from the majority writes the Court’s opinion, laying out detailed legal reasoning. Dissenting justices can write their own opinions explaining their disagreement.
This process creates clear legal precedent. The detailed written opinions guide lower courts, legislators, and the public. They form the foundation of American law.
The Shadow Docket
The shadow docket operates differently. It handles emergency applications where a party asks the Court to intervene immediately in a case still proceeding in lower courts. Most applicants seek a stay or injunction – orders that temporarily block a lower court’s ruling.
The process is compressed and largely hidden:
Limited briefing. Parties submit much shorter briefs on tight deadlines, sometimes with only days or hours to respond.
No oral argument. The Court almost never hears arguments for shadow docket cases.
Unexplained orders. Rulings come as brief, unsigned orders called “per curiam” decisions. These orders are often one or two sentences long with little or no legal reasoning. They typically don’t disclose vote counts, though dissenting justices may note their opposition. The Court can issue these rulings at any time, including late at night.
The shadow docket was designed for thousands of routine procedural matters and true emergencies where an applicant will suffer “irreparable harm” without immediate Court action. But the procedural shortcuts that enable speed eliminate the institutional safeguards central to judicial legitimacy on the merits docket.
A decision made in days without oral argument is fundamentally different from one produced over months of deliberation. When expedited rulings shape major national policy, questions about the basis and fairness of that power follow.
Merits Docket vs. Shadow Docket at a Glance
| Feature | Merits Docket | Shadow Docket |
|---|---|---|
| Case Volume | Approx. 60–70 per term | Thousands of orders per term |
| Timeline | Months to over a year | Days or weeks, sometimes hours |
| Briefing | Extensive, multi-round briefing from parties and amici curiae | Severely limited briefing on an expedited schedule |
| Oral Argument | Always held; public | Almost never held |
| Deliberation | Formal conference discussion among justices | No formal conference; handled through memos |
| Opinion Format | Lengthy, signed majority opinion with detailed reasoning; concurrences and dissents are common | Brief, unsigned “per curiam” orders; often one or two sentences with no reasoning |
| Transparency | High: Public arguments, signed opinions, clear vote counts | Low: No arguments, unexplained orders, often unclear vote counts |
| Precedential Value | Establishes clear, binding precedent (stare decisis) | Officially limited, but increasingly treated as precedential, creating confusion |
| Typical Use Cases | Resolving major constitutional and statutory questions (Brown v. Board, Roe v. Wade) | Procedural requests (e.g., filing extensions), emergency stays, injunctions |
Where the Shadow Docket Came From
The term “shadow docket” is recent, but the mechanism is as old as the Court itself. The Court has always had authority to issue orders outside its formal opinion-writing process. For most of its history, this function was uncontroversial and essential for managing the Court’s workload.
Early Years
Historically, most nonmerits orders were procedural and mundane – granting lawyers more time to file a brief or denying petitions for review. In a 1950 case, Maryland v. Baltimore Radio Show, Inc., Justice Felix Frankfurter explained for a unanimous Court that providing reasons for thousands of routine actions would be “prohibitive” in terms of time.
The Court occasionally used this power for significant matters. In 1953, Justice William O. Douglas issued a last-minute stay of execution for Julius and Ethel Rosenberg, though the full Court quickly reconvened to vacate his order. In 1973 in Holtzman v. Schlesinger, Justice Douglas briefly reinstated a district court injunction that would have halted the Nixon administration’s bombing of Cambodia, but the full Court quickly vacated his order and allowed the bombing to continue. These instances were notable because they were so rare.
The norm was that emergency applications were handled by a single justice assigned to oversee the federal circuit where the case originated. That justice would often hear arguments from lawyers and issue a signed opinion explaining the reasoning.
The 1980s Shift
The modern shadow docket began taking shape in the 1980s with a seemingly minor procedural change: the Court stopped formally adjourning for summer recess. Because the Court was now technically in session year-round, individual justices started referring significant emergency applications to the entire nine-member Court for collective decisions.
This centralization had an unintended consequence. As the full Court began acting together on these matters, the tradition of holding hearings and issuing signed, reasoned opinions for emergency requests faded. The process became less transparent, shifting from a public action by an accountable justice to an inscrutable collective order from the institution as a whole.
The Term Takes Hold
For decades, this evolution went largely unnoticed outside a small circle of legal experts. That changed in 2015 when University of Chicago law professor William Baude published an article titled “Foreword: The Supreme Court’s Shadow Docket.” Baude used the term neutrally to describe the wide range of orders and summary decisions made outside the Court’s normal procedural regularity. The “shadow” metaphor referred to the obscurity surrounding these thousands of rulings, not anything sinister.
The term has since become charged. As the docket has been used for increasingly controversial and politically divisive issues, the name has taken on a more ominous connotation. Justice Samuel Alito has called it a “catchy and sinister term” used by critics to “portray the Court as having been captured by a dangerous cabal.” He argues the more accurate name is the “emergency docket.”
This debate over nomenclature reflects the docket’s transformation from a procedural backwater into a central battleground in the nation’s most contentious legal and political fights.
The Surge Since 2017
The shadow docket’s rapid ascent from niche academic topic to front-page news traces to a dramatic increase in its use for high-stakes cases beginning around 2017.
The statistics are stark. During the 16 years of the George W. Bush and Barack Obama administrations, the federal government filed a total of eight emergency applications with the Supreme Court. In the four years of the Donald Trump administration, the government filed 41. The Court granted relief to the Trump administration in 28 of those requests, a historically high rate of success. These rulings involved some of the administration’s most controversial policies, including the travel ban, funding for the border wall, and the resumption of federal executions.
The trend continued. The Court used the shadow docket to issue major rulings affecting Biden administration policies, striking down a federal eviction moratorium and blocking the termination of the “Remain in Mexico” immigration policy. The volume of activity has exploded. In the 2024-25 term, the Court handled over 110 emergency applications, far exceeding the roughly 60 cases it decided on its merits docket.
This dynamic isn’t driven by a single actor. As lower court judges began issuing more “nationwide injunctions” to block executive policies, the executive branch turned to the Supreme Court for emergency relief more frequently. A Court majority increasingly willing to grant such requests signaled that the shadow docket was a viable path for securing favorable outcomes. This success encouraged more applications, transforming the Court into an early-stage arbiter of political conflict.
The resulting stream of consequential, unexplained orders on politically charged topics naturally drew intense public scrutiny, leading some observers to frame the Court’s actions in partisan terms and fueling a cycle of criticism and defense that some argue has further politicized the institution.
The Case Against Current Use
Critics of the Court’s reliance on the shadow docket raise several concerns about its impact on the judicial system and the rule of law.
Transparency and Accountability
The most common criticism: unsigned, unexplained orders are an exercise of raw power without public justification. When the Court doesn’t “show its work,” the public, lower courts, and Congress can’t understand the legal basis for its decisions. Critics argue this opacity undermines public trust and shields individual justices from accountability for their votes. Justice Elena Kagan has pointedly remarked, “Courts are supposed to explain things.”
Absence of Process
Major decisions affecting millions of people and shaping national policy are being made without traditional safeguards. The lack of full briefing, public oral argument, and formal deliberation among the justices critics say raises the risk of error and has led to accusations that the Court has “botched” its legal analysis in complex cases.
Institutional Legitimacy
The combination of speed, secrecy, and politically divisive outcomes critics argue feeds a perception that shadow docket rulings are driven by ideology rather than principled legal reasoning. When momentous orders are handed down in the middle of the night without explanation, some observers say it can appear more like a political maneuver than a judicial act, potentially damaging the Court’s standing as an impartial institution.
Lowering the Bar
A key legal critique: the Court has become too willing to grant emergency relief. The legal standard for a stay requires the applicant to show they will suffer “irreparable harm” and that they are likely to succeed on the merits. Dissenting justices have repeatedly argued that the majority is granting stays in cases that are not true emergencies and where irreparable harm has not been proven. In a notable dissent, Justice Kagan warned that the shadow docket was becoming “only another place for merits determinations – except made without full briefing and argument.”
The Defense
Defenders of the Court’s practices argue that the shadow docket remains a necessary tool and that criticism is often overblown or misplaced.
True Emergencies
The primary defense: the Court must have a way to act quickly in genuine emergencies. The most frequent example involves last-minute appeals from death row inmates, where a decision must be made before a scheduled execution. In these life-or-death situations, the lengthy merits process isn’t an option.
Responding to Lower Courts
Some proponents, including Justice Alito, argue that the recent surge in emergency applications isn’t the Supreme Court’s fault. It’s a necessary response to an “unprecedented” number of nationwide injunctions issued by federal district courts. When a single judge halts a major federal policy across the entire country, the executive branch has no choice but to seek immediate relief from the highest court.
Political Motivation
A common defense: much of the outcry over the “shadow docket” is a proxy for disagreement with the Court’s conservative-leaning decisions. Defenders suggest that critics are attacking the process because they dislike the outcomes, and that if the rulings were ideologically different, the complaints would disappear.
Major Cases and Their Impact
The debate over the shadow docket isn’t academic. Its rulings have immediate and profound consequences for people across the country.
Texas Abortion Law
In 2021, Texas enacted Senate Bill 8, a law prohibiting abortions after the detection of embryonic cardiac activity, typically around six weeks of pregnancy. The law’s design was unprecedented: instead of being enforced by state officials, it empowered any private citizen to sue anyone who “aids or abets” an abortion in violation of the ban, with a reward of at least $10,000 for a successful lawsuit. This structure was intended to make the law difficult to challenge in federal court.
Abortion providers asked the Supreme Court for an emergency injunction to block the law before it took effect. On the night of September 1, 2021, in a 5-4 vote, the Court denied the request in Whole Woman’s Health v. Jackson. The majority issued a single, unsigned paragraph, stating that the application presented “complex and novel antecedent procedural questions” that prevented it from intervening. The Court did not rule on the constitutionality of the Texas law itself.
The impact was immediate. The ruling allowed a law that directly conflicted with nearly 50 years of precedent under Roe v. Wade to go into effect, virtually eliminating access to abortion in the nation’s second-most populous state. The case demonstrated that the Court could wield immense power through inaction on the shadow docket, with consequences just as significant as a direct ruling. In a dissent, Justice Sonia Sotomayor called the majority’s order “stunning,” accusing her colleagues of opting “to bury their heads in the sand.”
COVID-19 Policies
During the COVID-19 pandemic, the federal government implemented two major public health policies that quickly ended up on the shadow docket. The first was a nationwide moratorium on evictions issued by the Centers for Disease Control and Prevention to prevent mass homelessness. The second was a rule from the Occupational Safety and Health Administration requiring employees at large businesses to be vaccinated or undergo weekly testing.
In August 2021, the Supreme Court blocked the eviction moratorium in Alabama Association of Realtors v. HHS with an unsigned order. The Court stated that it “strains credulity” to believe that the public health law cited by the CDC granted it the sweeping authority to halt evictions nationwide.
Five months later, in January 2022, the Court issued another unsigned order to halt the OSHA vaccine-or-test mandate in NFIB v. OSHA. The majority reasoned that while COVID-19 is a risk in the workplace, it is a universal risk of daily life, not a specific “occupational” hazard that OSHA is empowered to regulate.
These two rulings invalidated central pillars of the federal government’s pandemic response, affecting millions of American renters and workers. They showcased the Court’s willingness to use the shadow docket to make far-reaching decisions about the power of federal agencies, deploying complex legal theories like the “major questions doctrine” without the full briefing and argument that would accompany a merits case.
California Religious Gatherings
As part of its pandemic response, California restricted at-home gatherings, including Bible studies and prayer meetings, to no more than three households. Challengers argued this violated their First Amendment right to the free exercise of religion.
In April 2021, the Supreme Court issued an unsigned, 5-4 order in Tandon v. Newsom blocking California’s rule. The brief order articulated a new legal test: government regulations are unconstitutional if they treat “any comparable secular activity more favorably than religious exercise.”
What made the ruling particularly significant was its effect on legal precedent. The order explicitly rebuked the U.S. Court of Appeals for the Ninth Circuit for not adhering to the Supreme Court’s prior shadow docket rulings on religious gatherings.
This case became a primary example of the creation of “shadow precedent.” The Supreme Court was signaling that its brief, unexplained emergency orders were not temporary fixes but were intended to be treated by lower courts as binding law. This development has created significant confusion, as lower court judges are now tasked with interpreting and applying cryptic orders that may conflict with decades of more thoroughly reasoned opinions from the merits docket.
The Problem of Shadow Precedent
The American legal system is built on the doctrine of stare decisis – “to stand by things decided.” This principle holds that courts should follow their prior decisions, or precedent, to ensure that the law is stable, predictable, and applied consistently. The detailed, reasoned opinions from the merits docket are the primary source of this precedent.
Shadow docket orders disrupt this system. Because they are typically unexplained, they leave lower courts, lawyers, and citizens guessing about the legal reasoning behind them. This creates legal uncertainty and inconsistency, as different judges may interpret the same cryptic order in different ways.
When the Supreme Court itself, as it did in Tandon v. Newsom, insists that these unexplained orders must be followed as binding precedent, it places lower courts in an impossible position. They are forced to reconcile a one-sentence order with volumes of established case law, potentially leading to arbitrary and unpredictable legal outcomes.
Calls for Reform
The growing controversy has not gone unnoticed by the other branches of government. Both the House and Senate Judiciary Committees have held hearings to investigate the Court’s increasing reliance on the shadow docket, with lawmakers from both parties expressing concern.
Several reforms have been proposed, including legislation that would require the Court to provide a written explanation for any shadow docket ruling that blocks a lower court’s order and to publicly disclose how each justice voted.
The debate over the shadow docket is ultimately about the Supreme Court’s relationship with the American public. An institution whose authority rests on public trust and the perceived fairness of its procedures risks eroding that trust when it makes major decisions in secret. Continued reliance on an opaque process for rulings that affect the lives of millions could further diminish public confidence in a judiciary that is already viewed by many through a partisan lens.
Institutional Stress
The prominence of the shadow docket reflects broader institutional stress within the American system of government. It’s symptomatic of an era of intense political polarization where executive actions are met with immediate legal challenges, often resulting in nationwide injunctions that paralyze government policy.
In this environment, the executive branch increasingly turns to the Supreme Court for rapid intervention. The Court, itself a subject of fierce partisan confirmation battles, becomes an early-stage player in these political disputes. The shadow docket, with its speed and lack of procedural hurdles, becomes a mechanism for a Court majority to exert its influence in high-stakes conflicts without the difficult work of building the durable legal consensus required by the merits process.
The rise of the shadow docket is about more than judicial procedure. It’s about how all three branches of government are straining under the pressures of modern political conflict. The Court’s emergency docket – whether you call it the shadow docket or something else – has evolved from a tool for managing routine matters into a venue for deciding some of the nation’s most consequential questions.
How the Court uses this power, and whether it reforms its practices to increase transparency and accountability, will shape public trust in the judiciary for years to come.
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