Shadow Dockets

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• Case study Trump & the Supreme Court 

• Interpretations and debates of the US Supreme Court and civil rights 

• Case study The conservative agenda of the Roberts Court 

The well know process of the Supreme Court is that after scrutinising briefs from litigants and amici curiae (friends of the court), the justices hear oral argument in these cases and then, weeks or months later—release opinions explaining why one party won and the other lost. 

But this methodically adjudicated “merits docket” represents a shrinking proportion of the Supreme Court’s  business. Although the justices handle about 60 cases this way each year (down from more than 150 in the 1980s), they deal with thousands of other legal tangles without fanfare and with scant explanation using 'Shadow Dockets'. (a term coined in 2015 by Will Baude of the University of Chicago) includes emergency appeals from parties who believe they would be irreparably harmed without quick intervention from the justices. Whereas cases arrive on the regular docket if at least four justices agree to take them up, anyone can try their hand at filing an emergency appeal. Most shadow-docket orders are unremarkable. Some, like that of the man seeking to lift the federal airline mask requirement so he could fly to Germany without triggering an anxiety disorder, border on the comical. (His application was denied.) 

However, some cases are more significant. On August 24th, with the liberal justices in dissent, the court rejected President Joe Biden’s plea not to be compelled to reinstate Donald Trump’s border policy, which required asylum seekers to await word on their applications while living on the Mexican side of the southern border. 

 Requests from condemned criminals to have their executions blocked or delayed routinely reach the justices this way. Of the 8,000 or so annual petitions to review a decision in a lower court, about 99% are denied. 

That changed in 2017 when several policies of the Trump administration ran aground in lower courts. A litany of Mr Trump’s moves—from a ban on travel from Muslim countries and diversion of funds to pay for his border wall to a prohibition on trans soldiers and aggressive use of the federal death penalty—were blocked by federal judges, prompting the administration to beg the Supreme Court to intercede. According to Steve Vladeck, a law professor at the University of Texas, the Trump administration filed a staggering 41 emergency applications in its four years—compared with just eight during the 16-year period when George W. Bush and Barack Obama sat in the Oval Office. That is a 20-fold increase in presidential use of the shadow docket. And it paid off: of Mr Trump’s 41, the justices at least partially came through for him 28 times. 

Five of the six conservatives who now command the majority on the US’s most powerful court have rammed through some of their most contentious and extreme partisan decisions using the so-called “shadow docket” – unsigned orders issued frequently late at night, in literal and metaphorical darkness. The orders do not reveal who voted for them or why, often providing one-line explanations of the legal thinking behind them. 

The spike in shadow-docket cases involving issues of national importance—including battles over election rules and public-health measures to fight covid-19—highlights a deficit of transparency and accountability. One such order alone, the decision on the shadow docket to block the Biden administration’s January 2022 requirement that large employers mandate Covid vaccinations for their workforce, affected more than 83 million Americans – about a quarter of the US population.

“The rise of the shadow docket reflects a power grab by a court that has, for better or worse, been insulated from any kind of legislative response,” Vladeck writes.

 Mr Vladeck, who testified before a House subcommittee investigating the shadow docket in February, wants to see the court include “at least a brief explanation” whenever it makes a change to the status quo. Leah Litman, a law professor at the University of Michigan, says a justification is particularly important when the Supreme Court reinstates a death sentence that has been blocked by a lower court. Mr Vladeck would also like the justices to own up to their votes by identifying themselves and, for important issues that do not require immediate resolution, hold fast-tracked oral arguments before rendering a judgment. 

The US Supreme Court has ruled that President Donald Trump can dismiss a top official on the Federal Trade Commission.

On September 22, 2025, the Supreme Court issued an emergency order that allowed former President Donald Trump to immediately fire Rebecca Slaughter, a Democratic commissioner on the Federal Trade Commission (FTC). Because this order was issued without full oral arguments or a detailed explanation of the court's reasoning, it is considered a ruling from the "shadow docket".  

Justice Elena Kagan, writing for the dissenting liberal justices, warned that the ruling allows the president to take charge of institutions Congress had intended to protect from partisanship.

"Congress, as everyone agrees, prohibited each of those presidential removals," Justice Elena Kagan wrote in her dissent. "Yet the majority, stay order by stay order, has handed full control of all those agencies to the President."

"He may now remove - so says the majority, though Congress said differently - any member he wishes, for any reason or no reason at all. And he may thereby extinguish the agencies' bipartisanship and independence, " Justice Kagan added.

• The FTC firing: In March 2025, Trump fired Slaughter and fellow Democratic FTC commissioner Alvaro Bedoya. Bedoya later resigned, but Slaughter filed a lawsuit arguing the removal was illegal based on a nearly 90-year-old Supreme Court precedent from Humphrey's Executor v. United States (1935). That ruling held that presidents can only fire FTC commissioners "for cause" (misconduct or neglect of duty), not for political reasons.

• Lower court rulings: A federal district court and the D.C. Court of Appeals both sided with Slaughter, ordering her reinstatement.

• Supreme Court emergency order: The Trump administration asked the Supreme Court for an emergency stay to prevent Slaughter's reinstatement. On September 22, the court's 6-3 conservative majority granted this request, allowing Trump's firing to stand for now.

• Shadow docket characteristics: The order was a short, unsigned ruling that did not include a full opinion explaining the majority's legal reasoning. The court's brief explanation was limited, stating that the government faced a "greater risk of harm" from a reinstated officer than the harm faced by a wrongfully removed one.

• Future review: The justices announced they would hear oral arguments on the full case in December 2025. This will allow the court to formally re-examine the Humphrey's Executor precedent.

• Significance of the shadow docket ruling: Critics, including the dissenting liberal justices, have argued that the court's increasing reliance on the shadow docket, particularly in politically charged cases, erodes the court's legitimacy by issuing significant rulings with little transparency. Observers believe the conservative majority's decision to temporarily halt a reinstatement order that relied on a long-established precedent is a strong signal that it intends to overturn that precedent in the final ruling. 

The Rise of the Supreme Court’s So-Called Shadow Docket

Many of the rulings in which the justices have cleared the way for President Trump’s agenda have come in terse, unsigned orders.

Transcript of a discussion betweenRachel Abrams and Adam Liptak  New York Times

The Supreme Court is operating these days on two tracks. One of those tracks, the one you refer to, Rachel, is the merits docket. On the merits docket, people ask the Supreme Court to hear a case. If it does, it hears oral arguments. The justices meet, vote, deliberate, exchange drafts. And about 60 times a year, they issue long, involved considered decisions, majority opinions, dissenting opinions, often a hundred pages or more. And that’s what we’re used to. Now at the same time, on a separate track, there’s the so-called — and people use different names for this. There’s the shadow docket or the emergency docket. Or lately, some justices have been calling it the interim docket.

But the short of it is that this happens really fast. Parties race to the court. They submit only very thin briefs. There’s no oral argument. And in a matter of weeks, the court issues orders, deciding consequential matters in a way that will last a year or two in a very terse opinion. And this different procedure has really accelerated in the second Trump administration, which has run to the court maybe 24 times already in its first seven or eight months in office.

That’s a larger number than the Biden administration did over four years. It’s a much larger number than the Obama and George W. Bush administrations combined.

And also, the subject matter of these applications is really consequential. And the court has greenlighted immigration stops in LA, canceling NIH grants, firing thousands of federal workers, discharging transgender service members. It’s essentially the entire Trump agenda. presidents of both parties have been increasingly aggressive in trying to do stuff by executive order. And that gives rise, kind of as night follows day, to court challenges, to court rulings, to initiatives being blocked, and the Supreme Court being asked to weigh in on really short notice. And I should say that this acceleration, this uptick has exploded in the second Trump administration.

And the administration thought that the Supreme Court will generally be sympathetic to them, either because it’s a 6-3 Republican appointee majority that might be inclined to be sympathetic to a Republican president, or a court that in general defers to executive power of presidents of either party. But the Trump administration has gone to the Supreme Court over and over again in the knowledge that they are quite likely to succeed. And they have been.

Tthe Trump administration has basically figured out that this is an effective strategy to execute their agenda quickly. And they have been proven right in the many decisions that we’ve seen handed down so far this year. But I feel like a lot of people listening might be thinking, wait a minute, don’t the Supreme Court justices typically vote along party lines? There’s a reason we call them conservatives or liberal justices, right?

adam liptak

There is an element of politics in Supreme Court judging. But in argued cases on the so-called merits docket, they’re unanimous 40 percent of the time. The number of cases that break strictly along the 6-3 line is a large handful. And unusual alliances, and weird permutations, and strange bedfellows are not uncommon on the merits docket.

rachel abrams

So in the normal course of business, you do see more agreement among the conservative and the liberal justices.

adam liptak

Yes. But when we looked recently at just these emergency applications in the last two administrations, the picture is quite different. There’s a lot more partisan voting. There are essentially no strange bedfellows. The Biden administration did win a slight majority of its emergency applications, about 53 percent. The Trump administration, far more successful at 84 percent. But I don’t think those are the most interesting numbers.

The most interesting numbers are when you look at the voting records of individual justices. And the right side of the court and the left side of the court are both completely playing to type. So Justice Alito may well be the most conservative member of the court. Voted for President Trump 95 percent percent of the time and President Biden 18 percent of the time. That is a 77 percentage point gap.

I did that math because when you look at Justices Sotomayor and Ketanji Brown Jackson, probably the two most liberal members of the court, they also have a 77 percentage point gap, but going the other direction. Now this is not completely apples to apples. They’re not the same cases. They’re different legal issues, but in a sense not. In a sense, it’s the same fundamental legal issue.

How much difference do you give the president? And how do you calculate whether leaving a program in place causes harm to one side or the other? That’s the basic question in all of these emergency applications. And the justices I just mentioned come to very different conclusions, if not based on, at least correlated to the president, who they might be thought to or dislike.

Why do you think we see so much more partisanship in these emergency decisions?

adam liptak

I think the justices themselves will say they don’t do their best work on short notice, that long consideration of briefs, and arguments, and deliberations helps them understand the issues, find consensus —

rachel abrams

Find common ground.

adam liptak

Find common ground, find ways to rule maybe more narrowly, but with a greater majority. When you’re operating at this speed, things other than the law may take a greater role. Now the justices will say, well, that’s why we don’t write anything, because we don’t want to be locked in, because we haven’t thought it through completely, because we’re being required to give a quick answer. And we will defer to another day the chance to give a more considered answer. And they say that if you were to write something now, you’d be locked in, and it would be harder for you to come to a different conclusion later.

adam liptak

Well, just recently, there was a challenge to the immigration crackdown in the Los Angeles area, where, as you know, ICE agents were stopping, detaining lots of people. And challengers said that violated the Fourth Amendment. They said it was indiscriminate racial profiling. And they persuaded a federal trial judge to issue an injunction that says, we’re not saying you can’t enforce the immigration laws, but saying you can’t rely on certain factors alone or in combination.

And those factors were someone’s apparent ethnicity. You can’t stop somebody just for looking Hispanic, whether they speak Spanish or accented English, whether they’re at a work site that you might associate with unauthorized immigrants, or the type of work people do, say landscaping or construction. And the Trump administration didn’t like those restrictions.

They go to the appeals court, the Ninth Circuit. The Ninth Circuit won’t pause it. And they go to the Supreme Court. And the Supreme Court rules for the administration in a decision that contains precisely zero reasoning.

rachel abrams

So in other words — and I think this gets at the confusion that you were talking about earlier. If you are, for example, a judge in Chicago, and you’re dealing with this exact same type of issue, whether or not law enforcement can racially profile, you don’t know how the Supreme Court made its decision. So therefore, you don’t understand what the actual precedent is. And you are just basically guessing about whether or not your decision is an appropriate application of the Supreme Court’s precedent.

adam liptak

Right. One thing in this case in particular was that the trial judge’s ruling looked at four factors and said that you can’t, alone or in combination, relying on only those factors, stop somebody. Well, that raises a ton of questions. And the next judge may wonder, well, what about two or three of those factors? Or what about apparent ethnicity by itself? An ordinary merits decision would methodically work through these issues and give litigants and judges real guidance about what the law is.

Now we haven’t yet seen real-life examples of lower courts grappling with the quite recent decision on immigration stops in LA. But in other cases involving federal grants and whether the president can fire the leaders of independent agencies, whether he can deport people to South Sudan, those cases have caused actual judges to be actually confused.

Justice Neil Gorsuch actually, last month in a case involving NIH grants, said that a federal judge in Boston had ignored the reasoning of a four-paragraph order in April in a different case, and that he should have understood that even though that wasn’t a ruling on the merits and whether, as Justice Gorsuch said, it was only probabilistic, that it still had presidential force. And that judge had done something gravely wrong.

And that gave the judge, William Young of the Federal District Court in Boston, a real — I don’t know what to call it. He actually went into a court hearing and at length apologized and said he didn’t realize he had not meant to defy the Supreme Court —

rachel abrams

Oh, wow.

adam liptak

— that he was a Reagan appointee. He said in his 40-some years on the bench, he’s never tried to defy a higher court ruling. He is committed to precedent.

rachel abrams

He’s like, I’m not a troublemaker.

adam liptak

He just didn’t know. And this is not an isolated incident. Lots of judges are really struggling to figure out what kind of precedent a shadow docket ruling represents.

archived recording 1

The problem we have is the Supreme Court isn’t giving us opinions. It’s giving us signals.

adam liptak

Just last week, federal appeals court judges in Virginia debated this in open court.

archived recording 2

The Supreme Court’s action must mean something. It doesn’t do these things just for the kicks of it. And we can’t just blow past it.

adam liptak

And you can hear them weighing how, on the one hand, these orders are quite opaque.

archived recording 3

But I have to say, I read the Supreme Court as telling us we are the ultimate deciders of the interim status of a case. How do we get around that here?

adam liptak

On the other hand, they have an obligation to follow Supreme Court precedent if they can figure out what that precedent is.

archived recording 4

But they’re telling us nothing.

adam liptak

And so you had one judge really bristling at the Supreme Court for putting them in this position, for giving them so little detail, so little guidance.

archived recording 4

We’re out here flailing. We’re just thrown in the water. Just give us some guidance.

archived recording 5

Yeah, no disagreement there.

rachel abrams

Adam, I think one of the previous recent times we’ve had on the show was to discuss this growing tension between the lower courts and the Supreme Courts. And this feels like a really clear example of how that tension is playing out in the open.

adam liptak

Right. And in general, that is not the way the federal judicial system usually works. There’s great respect and admiration across the levels of the judicial system. And people know their roles. And this controversy disputes schism. And out in the open is really unusual.

rachel abrams

I guess one thing I’m wondering is it’s clear why what you have outlined could be frustrating to a judge. But why should an average person care that this is going on?

adam liptak

Well, if judges are confused, the people affected by these decisions are confused. And that’s not a handful of people. That’s thousands, maybe tens of thousands, of federal workers. It’s many hundreds of thousands of immigrants. These are decisions that are not abstractions. They are real life, life-altering decisions from the court.

rachel abrams

Given all of the confusion that this is causing for people and for the lower courts, I just want to ask, is this the only mechanism by which these cases can be decided? Do they really have to be decided this quickly just because the government asks for them to be decided on this emergency basis?

adam liptak

There is another way, and the court has done this occasionally. Instead of issuing an order based only on these thin stay application briefs, it could set the case down for argument. It could call for more briefs. It could do that pretty quickly. And maybe the answer is, in these hard cases, rather than moving at lightning speed, slow it down a little bit and give a more conclusive answer after briefing argument deliberation.

rachel abrams

The short answer is, no, it does not have to be this way. There could actually be an in-between option.

adam liptak

Yes. But what’s more common is that these same cases in which the court has temporarily greenlighted programs will come back to the court in due course in a year on the merits, and they’ll set it down for real arguments. And they won’t necessarily go the same way. In the Biden years, there were three instances where the court refused to lift injunctions blocking Biden programs, but ultimately ruled in favor of Biden.

In the Trump scenario, it may be that when cases return to the court, Trump loses. But in the meantime, things will have happened. If the court greenlights lifting immigration protections for hundreds of thousands of people, some of those people will have been deported. If the court greenlights firing thousands of federal workers, maybe someday they’ll go, you know what? You shouldn’t have fired them.

rachel abrams

But they got fired nonetheless. They got deported nonetheless.

adam liptak

Right. So you can call these interim orders, provisional orders, temporary orders. But they have real-world, immediate consequences that can’t necessarily be undone.

rachel abrams

I wonder how you think we should understand the moment that the court is now in in terms of whether what we are seeing represents a fundamentally different Supreme Court or a phase of the Supreme Court.

adam liptak

I think this could be a new normal with the court, which has for centuries operated in great deliberation. There are, scattered around the Supreme Court grounds, little sculptures of tortoises. And that’s a representation from the court that what they do is slow, and deliberate, and considered, and not moving at lightning speed.

But these days, seemingly half of the court’s efforts are devoted to this kind of speedy, unexplained work. And remember that we have three branches of government. Two of them are elected. They claim legitimacy by dint of having been elected by the public. The Supreme Court, the justices are obviously unelected.

And they claim legitimacy and authority by dint of reason, by dint of explaining themselves and persuading people that the issue before them has gotten their full attention and a careful opinion that you may not agree with, but at least you can follow it. At least you can engage with it. At least you can test where it’s right or wrong.

And a court that just says, like a parent would say to a child, why? Because I said so. That is a different version of the American justice system than the one we’ve been used to. And it has the potential to reshape not only the Supreme Court, but American justice.