It’s called the shadow docket.
It refers to decisions of the United States Supreme Court on “emergency applications,” in cases that do not have a developed record, do not have full briefing by the parties and do not have an oral argument. The court simply rules on the emergency papers submitted.
The rulings — which can come from a single justice or the Supreme Court as a whole — are made on an expedited basis and issued without a detailed opinion to explain the decision, and often without indicating which justices favored or opposed the decision.
The process has a lot of people worried. Among the concerns is that the shadow docket is being abused by the Trump administration to force justices into a cycle of rushed and incomplete rulings that could overwhelm the court.
President Donald Trump has filed 11 emergency applications in the first few months of his second term on a broad range of important topics like birthright citizenship, the freezing of billions of dollars in foreign aid and deportation issues.
Each of those cases is significant. In the normal course, each case would go through the trial and appellate courts before even being eligible for consideration by the Supreme Court. But through a process that has the government designating their applications as “emergency motions,” they have been able to bring to the Supreme Court challenges to things like nationwide injunctions issued by a single federal judge, which limit or invalidate a particular government order, or prevent or require certain conduct, not just in the jurisdiction of the judge’s court, but all over the country.
So, when a federal judge in New Mexico issues a nationwide injunction that addresses a new government policy of national significance, like abortion rights, environmental regulations, gun rights or immigration policy, the federal government can bypass further proceedings in the trial court or review by an appellate court and take the case directly to the Supreme Court for emergency review and decision.
That has some justices concerned. Last week, Justice Ketanji Brown Jackson warned that, “This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.” She went on to say that, “With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences.”
Similarly, Justice Elena Kagan criticized the overuse of the emergency docket, pointing out that, “The risk of error increases when this court decides cases — as here — with barebones briefing, no argument and scarce time for reflection.”
As confrontations between the Trump administration and its opponents continue, and as state attorneys general, interest groups and other litigants continue raising challenges to various policies, executive orders and presidential directives, the Trump administration has found a way to short-circuit the process in many cases by challenging negative national rulings through the use of the shadow docket.
There is a limit to how much of this increased burden and intense workload the Supreme Court will be able to take. The Trump administration seems intent on
finding out. ■
One wonders if there would be complaints about the shadow docket if the executive and judicial branches were under a different wing political tilt.