The Shadow Docket exists, and in a sense, ProPublica pulls the curtain aside like little Toto showing the Wizzard. The item begins:
In its term that ended last October, the Supreme Court passed an
important milestone that went unnoticed: For the first time, it decided
more cases by secret ballot, and with few signed opinions, than it did
for cases argued in open court.
These decisions, which make up the court’s “shadow docket,” are a
fast-track way to get a decision from the top court. They rarely include
arguments, have limited briefings and have expedited timetables, and
justices infrequently provide explanation of how they voted or to cite
legal precedent.
The Supreme Court’s increased willingness to bypass its regular
process has empowered President Donald Trump at the same time as the
administration has increased use of executive authority. The court has
repeatedly green-lit policies of his that lower courts have blocked —
and has done so with little to no explanation.
These emergency decisions have thrown lower courts’ processes into
turmoil and have sometimes directly contradicted longstanding legal
precedent. The outcomes have been consequential: The high court has used
the process to limit federal courts from issuing nationwide injunctions
and diminished Congress’ authority over federal agencies, and it has
allowed for the detention of American citizens by immigration agents.
ProPublica analyzed over two decades of Supreme Court rulings, which
cover all of the years under Chief Justice John Roberts and go as far
back as the online archives
allow. We found that when the last court term ended, justices had
issued 63 orders on the shadow docket, as opposed to 56 orders on the
more traditional merits docket — where the court hears oral arguments
scheduled months in advance and the justices issue signed opinions.
Legal scholars and court watchers were shocked by our finding. They
told ProPublica it’s likely the first time in modern history that so
many consequential decisions were made in secret by its nine members.
“The patterns show a court going out of its way to enable Trump,”
said Stephen Vladeck, a law professor at Georgetown University and a
Supreme Court analyst. He said that our findings reinforce the
appearance that the justices are voting on their political preferences.
“That’s the real blow to the court’s credibility,” he said.
Representatives from the Supreme Court did not respond to a detailed list of questions.
Further in the item:
For the First Time in Two Decades, Decisions on the Supreme Court’s Shadow Docket Outnumber the Merits Docket
Note: Supreme Court terms run from October to October.Ken Morales/ProPublica
There are two ways to get a decision from the Supreme Court. One is
to exhaust your appeals to lower courts and ask to argue your case in
front of the high court. The justices determine whether to take the case
on, and if they do, lawyers argue their case in front of them. The
other is to petition the justices directly via the emergency docket — to
freeze a lower court ruling or government policy while the case goes
through appeal.
The appeals to the emergency docket have long outnumbered those to
the merits docket, but most are procedural requests or requests to stay
execution for capital offenses. When those are removed, what’s left is
known as the shadow docket — cases that seek to skip the usual order of
things and ask for a quick ruling from the court’s justices.
The modern shadow docket was born in 2016 when the Supreme Court
issued an emergency stay against President Barack Obama’s Clean Power
Plan, experts say. Papers obtained by The New York Times
show that liberal justices at the time urged Roberts not to decide the
case on an emergency basis because it broke with longtime precedent. The
conservative justices, meanwhile, forcefully argued that the
president’s plan would eventually be overturned by the court anyway and
that it would put too much of a burden on the energy industry.
Driven by its numerous losses
in lower courts, the current Trump administration appeals to the
emergency docket significantly more often than previous administrations,
and the court has increasingly agreed to take quick action on its
appeals.
The Obama and George W. Bush administrations together filed just
eight petitions in 16 years. The Trump administration filed 32 in 2025
alone, an analysis by the Brennan Center for Justice found.
Trump would not call that abusive. Everybody else would, except for the black robed shadow operators. They are okay with it, they yield to it, and that encourages it.
