Bringing Light to the Implications of the Supreme Court’s Shadow Docket

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Over the last 250 years, Supreme Court practice has been tried, tested and solidified. In a typical case on the merits docket, lawyers for both sides are allotted thirty minutes to make oral arguments and respond to rigorous cross-examination by the bench. They submit extensive written briefs for the justices, who also consider amicus briefs and the opinions of lower courts before extensive conferences to deliberate and vote on cases. The chief justice appoints a justice to draft an opinion for the majority, which other justices collaborate on to ensure a consensus. It can take up to a year from the moment the petitioner requests a writ of certiorari—a request for review—for a decision to be handed down.

The shadow docket, instead, is intended for time-sensitive “emergency” applications and works very differently. To use Justice Kagan’s words from her dissenting opinion in Department of State v. AIDS Vaccine Advocacy Coalition, the emergency docket is a “short fuse” and that decisions are handed down after “scant briefing, no oral argument, and no opportunity to deliberate in conference.” Until the late 2010s, the emergency docket was used primarily for staying executions in death penalty cases. Today, the docket’s name—along with its reputation—has shifted to reflect its increasingly liberal usage, and in September, Justice Kavanaugh proposed renaming it the “interim” docket. “Shadow docket”, the term loved by the media today, was coined by University of Chicago constitutional law professor William Baude in a 2015 article to address the surreptitious nature of these decisions. The dramatic increase in the use of the shadow docket represents a fundamental shift in the way the Supreme Court interacts with the other two branches of government and the organization of the judiciary. 

In considering whether a case should be added to this emergency docket, the Court examines whether one party might suffer “irreparable harm” during the time it would take for the case to be considered on a typical merits court timeline. In death penalty cases, where the stakes are quite literally life or death, the irreparable harm is plain. The Court’s more recent emergency decisions, however, concern cases where the harm at stake is less obvious: whether the commissioner of the FTC can be fired, logistics of withholding congressionally-appropriated foreign aid, or the constitutionality of federal judges’ nationwide injunctions. In these cases, delaying Supreme Court relief would minimally harm the government in the time until the case can be heard on merits. In an interview with CBS last month, Justice Sotomayor described the shadow docket as “bypassing a normal process.” 

However, over the last five years, this bypassing has grown so common that it has become a norm. In the 2023-2024 Supreme Court term, there were 44 cases on the emergency docket, compared to 56 on the merits docket. The next year had 113 and 67 on the merits docket. This is not a reflection of any heightened sense of emergency but a shift in the Court’s practices. During Joe Biden’s presidency, the Court granted only 31% of applications for emergency relief, but the first year of Donald Trump’s second term saw the grant rate jump to 67%. Not only is there a marked increase in cases, but the cases that are heard have been  divisive. Before 2014, the justices publicly disagreed on emergency cases fewer than three times per term. Many years contained no disagreements at all. Since then, the disagreement rate has jumped to 30%. 

The separation of powers enshrined in the Constitution left the least detail to the third branch, the judiciary. Since the founding, the Court has been governed by one guideline above all: stare decisis. This principle of adhering to precedent is not enumerated in any law or mandated by the Constitution, but has become custom to ensure that justice is administered consistently and as a way to hold the Court accountable. The recent expansion of the emergency docket is notable both in its departure from the Court’s usual way of handing down decisions—a break from traditional practice—and in the fact that many of these decisions significantly alter precedent. Without written opinions explaining the Court’s rulings, each decision functions more like legislation. Since opinions are not required in shadow docket rulings, the public is denied any insight into the principles of law, stare decisis, or methods of constitutional interpretation that lead the Court to decide a certain way. While the number of shadow docket decisions that are accompanied by opinions has increased since the late 2010s, the opinion rate remains at less than 30%. If these cases were indeed “emergencies,” perhaps there might not be time to author opinions, but many recent decisions have been accompanied by lengthy dissents. If the justices in the minority had the time to coordinate and write, it seems reasonable to conclude that the majority could do the same. Instead, the Court can use the emergency docket to alter precedent without explanation. 

Adding to the docket’s aura of mystery is the stipulation that justices are not required to disclose their votes on cases decided by the shadow docket. Since vote counts are not published, the public is in the dark about which justices voted for or against a certain ruling, how large a majority is, or whether any justices recused themselves from a case. For instance, the decision in Trump v. American Federation of Government Employees was handed down in July along with a dissent written by Justice Jackson, and signed by only her. Justice Sotomayor issued a brief opinion agreeing with the majority. Justice Kagan’s vote is a mystery—per Supreme Court custom, just because she did not sign Jackson’s dissent does not preclude the possibility that she voted with the majority. It may never be known whether eight justices voted in the majority and whether Jackson was the lone dissenter. This lack of clarity drives the wedge between the Court and the public created by the shadow docket even further: without having to sign their name or provide reasoning for their decisions, the door is opened wider to the perception of judicial policymaking and capriciousness. 

On September 22, 2025, the Court granted the administration a temporary stay in the case of Trump v. Slaughter, which concerns whether the president can fire a member of the Federal Trade Commission. Though shadow docket decisions are intended to be made on a case-by-case basis, decisions like this one suggest that the Supreme Court intends for its shadow decisions to be binding on lower courts. This is the first time the shadow docket has been used for such an upheaval of precedent. The case is slated for the merits docket this term, but the Slaughter  decision seems as good an indication as any of which way the majority will vote. 

Lower court judges, therefore, face a pressing dilemma: shall they decide a case based on 90-year-old precedent, or try to guess at the Supreme Court’s whims? This intrabranch conflict and disorientation is the most urgent implication of the increase in emergency docket decisions. Though shadow docket decisions are cited significantly less than merit decisions, those that grant relief and depart from stare decisis are cited more frequently by lower court opinions than those that uphold the status quo. This suggests that lower court judges are trying to read shadow docket opinions as a signal of the Supreme Court’s preferences or a hint of a significant upcoming change. In a footnote to her opinion in the case of Harvard College v. United States, Massachusetts district court judge Allison Burroughs wrote of the rock and hard place American judges find themselves between: “they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.” The judiciary is impeded as long as the Supreme Court treats their shadow docket decisions as binding on lower courts and lower courts wrestle with competing precedents. 

We are looking out on uncharted territory as these decisions, unsigned and unjustified, change how lower courts look to the Supreme Court for guidance. And there is much more to come. Currently, six cases are pending on the Court’s shadow docket. These cases include Trump v. Illinois, whether the Trump administration can federalize and deploy the National Guard within Illinois, Castro v. Guevara, which concerns the repatriation of a seven-year-old girl to Venezuela, Trump v. Orr, whether the State Department can provide transgender and nonbinary people with passports that reflect their chosen gender identity, and Trump v. Cook, whether the president can fire a member of the Federal Reserve Board of Governors. These are no insignificant cases, and it is likely that the Court’s forthcoming rulings will continue to drastically alter the US legal landscape. While it is impossible to predict which way these cases will go, we can say with some certainty that they will only exacerbate the confusion and tension that shadow docket cases foster. 

Isabella Gardiner is a sophomore studying history. She is a writer for the Brown Undergraduate Law Review and can be reached at isabella_gardiner@brown.edu 

Danny Moylan is a sophomore from Massachusetts studying Political Science and International/Public Affairs. He is a staff editor for the Brown Undergraduate Law Review and can be contacted at daniel_moylan@brown.edu 

Emily Walsh is a sophomore from Minnesota studying Philosophy and International & Public Affairs. She is a staff editor for the Brown Undergraduate Law Review and can be contacted at emily_m_walsh@brown.edu