{"id":163287,"date":"2026-09-21T14:18:07","date_gmt":"2026-09-21T22:18:07","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/09\/21\/supreme-court-shadow-docket-is-now-bigger-than-the-real-transparent-one\/"},"modified":"2026-09-21T14:18:07","modified_gmt":"2026-09-21T22:18:07","slug":"supreme-court-shadow-docket-is-now-bigger-than-the-real-transparent-one","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/09\/21\/supreme-court-shadow-docket-is-now-bigger-than-the-real-transparent-one\/","title":{"rendered":"Supreme Court \u2018Shadow\u2019 Docket Is Now Bigger Than The Real, \u2018Transparent\u2019 One"},"content":{"rendered":"

Conservative justices have spent years at war with two words. I know you\u2019re thinking it\u2019s something like \u201cequal protection\u201d or \u201creproductive rights,\u201d or \u201cbasic ethics,\u201d but let\u2019s be serious \u2014 they already won those wars. The two words that get the conservatives riled up these days are \u201cshadow docket.\u201d Samuel Alito blasted the media for using the term to create the impression that the Supreme Court \u201cis deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view<\/a>,\u201d just because the Supreme Court is, in fact, deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view. Brett Kavanaugh even channeled his inner Gretchen Wieners seeking a \u201cfetch\u201d-esque rebrand, hoping the term \u201cinterim docket\u201d might catch on<\/a> to make the flurry of consequential constitutional decisions rammed through without briefing or written opinion seem less\u2026 shady.<\/p>\n

Well, maybe they\u2019re right! Maybe it is time to drop the shadow docket. Not because the Court\u2019s aggressive abuse of the procedure is any more legitimate, but because the metaphor broke. A shadow needs something real to stand in the light, while the shadow is the smaller, murkier thing trailing behind. <\/p>\n

But now, the shadow docket is the Supreme Court\u2019s preferred way of doing business. The outlier is when the justices deign to respect transparency.<\/p>\n

ProPublica set out to put numbers behind the shadow docket<\/a>. Analyzing the Court\u2019s records, and excluding simple administrative requests and capital cases that have long lived on the emergency docket, ProPublica found back in July<\/a> that the shadow has overtaken the merits docket:<\/p>\n

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I discovered that in the term that ended in 2025, the justices issued more substantive decisions on their emergency docket than in cases argued in open court. Experts told me this was likely the first time this has happened in the court\u2019s modern history.<\/p>\n<\/blockquote>\n

The Supreme Court issued 63 shadow orders in the term ending last year, to only 56 with argument and real, written and signed majority opinions. This year isn\u2019t looking much better.<\/p>\n

When the kitchen door handles more traffic than the front door, it\u2019s just the front door now. The briefing-argument-signed-opinion routine everyone learned in school \u2014 and which underpins the judiciary\u2019s entire claim to legitimacy \u2014 is now the side project. We shall henceforth dub the merits docket as the \u201ctransparent docket,\u201d a quaint exhibition the justices run from October through June in between unbriefed and unexplained rulings to rewrite constitutional order.<\/p>\n

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ProPublica\u2019s Ken B. Morales put the numbers to the Supreme Court itself: <\/p>\n

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Representatives from the Supreme Court did not respond to my questions.<\/p>\n<\/blockquote>\n

You have got to hand it to the justices for their commitment to the bit.<\/p>\n

ProPublica notes that \u201cEvery decision the court has made since July has been on its shadow docket.\u201d Which is always true during the Court\u2019s summer break \u2014 but historically the summer break was a \u201cbreak\u201d and not business-as-usual. These days, the Court doesn\u2019t take summers off from deciding<\/em> things, just from explaining<\/em> them.<\/p>\n

Oh, remember back in the day when Amy Coney Barrett whined about the public needing to \u201cread the opinion<\/a>.\u201d That was before she decided well, you can\u2019t expect us to put ourselves on the record when we blow up constitutional order!<\/a><\/em><\/p>\n

The surge in these under-the-table orders have mostly inured to the benefit of the Trump administration<\/a>. Like the Court greenlighting the president\u2019s power to blow up and then squander millions in taxpayer funds to build vanity projects \u2014 a power we hope to see applied to One First Street soon<\/a>. But Trump has suffered his share of losses through the process too, notably this month\u2019s block on Missouri\u2019s new gerrymander<\/a> and the order upholding the injunction on Trump using the Postal Service to steal mail-in ballots<\/a>. <\/p>\n

But as much as it warms the heart of anyone who cares about constitutional order to see the Trump administration lose, this is about more than the outcome. We should have arguments and signed opinions. The Court\u2019s power derives from its power of persuasion<\/a>, as Judge J. Michael Luttig has said. An emergency stay is all well and good if issued to give the justices time to set up a proper, transparent process.<\/p>\n

But too often these days, as Professor Vladeck notes, the supposedly \u201cinterim\u201d order slides into de facto permanence<\/a> without the Court bothering to follow up.<\/p>\n

The Court let the administration strip TPS from roughly 600,000 Venezuelans. The arrests and removals that followed are \u201calmost certainly impossible to undo\u201d unless Trump is actually going to annex Venezuela, which\u2026 I mean\u2026 it\u2019s only Monday. The majority also greenlit 1,400 Education Department firings through the shadow docket, and those people didn\u2019t have the luxury of waiting around for a merits ruling before going out to rebuild their lives. The ballroom is getting built, and nobody is jackhammering it out if litigation eventually catches up. <\/p>\n

Which, of course, is the game plan. Coupled with the conservative justices sniping at lower court judges \u2014 as Neil Gorsuch did \u2014 for continuing to apply existing caselaw rather than treat ostensibly interim orders as some sort of vibe precedent, the conservative majority has \u2014 I\u2019ve argued \u2014 tipped its hand. It doesn\u2019t WANT to overrule existing precedent<\/a>. It wants<\/em> to issue Trump situational, unexplained blank checks, demand that the lower court honor those checks for the foreseeable future, and then swoop in under the next Democratic administration to declare: \u201cWhat do you mean presidents can do that? We never actually overruled that decision we held in limbo for the last four years!\u201d<\/p>\n

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Kavanaugh\u2019s other defense, offered in a public back-and-forth with Justice Jackson<\/a> this spring, is that this is \u201cnot unique to the Trump administration.\u201d Presidents pursue executive action, executive action draws lawsuits, lawsuits draw emergency applications. Yeah, except this Court is using these \u201cemergencies\u201d to allow the executive branch to create irreparable harm without ever bothering to circle back to the merits. ProPublica\u2019s July report<\/a> found the Trump administration filed more emergency applications in 2025 alone than the Bush and Obama administrations combined over 16 years. The report today closes the loop on that\u2026 all those applications are turning into Supreme Court rubber stamps that the majority doesn\u2019t even have the courage to explain.<\/p>\n

So fine. We\u2019ll move away from calling out the \u201cshadow docket\u201d and start recognizing the Court\u2019s sub rosa docket as its new business model, and start flagging whenever the Court opts for its transparent docket. <\/p>\n

Maybe the exception can draw more attention to the rule.<\/p>\n

Watch: The New Supreme Court<\/a> [ProPublica]<\/p>\n

Earlier<\/strong>:<\/em> Supreme Court\u2019s Shadow Docket Scam Collides With Reality<\/a>
Supreme Court Just \u2018Calvinball Jurisprudence With A Twist,\u2019 Writes Justice Jackson<\/a>
It\u2019s Time To Tear Down The Supreme Court Building To Build A Bigger Ballroom\u2026 For, Um, National Security<\/a>
\u2018Read The Opinion\u2019 Urges Supreme Court Justice Constantly Ruling Without Written Opinions<\/a>
Amy Coney Barrett Then: \u2018Read The Opinion!\u2019 ACB Now: Inappropriate To Expect Supreme Court To Explain Decisions<\/a>
Supreme Court To Missouri Republicans: Shut Up<\/a>
Trump\u2019s Own Justices Are \u2018A Shell Of Their Original Selves\u2019 For Not Handing Him The Midterm Election<\/a>
District Judges Fight To Save The Rule Of Law While DOJ And Supreme Court Snicker<\/a>
SCOTUS Justices Air Internal Debate Over Shadow Docket At Public Event<\/a><\/p>\n

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\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n

The post Supreme Court \u2018Shadow\u2019 Docket Is Now Bigger Than The Real, \u2018Transparent\u2019 One<\/a> appeared first on Above the Law<\/a>.<\/p>\n

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\n\t\t\t\t\t\t\t(Photographer: Samuel Corum\/Bloomberg)\t\t\t\t\t\t<\/figcaption><\/figure>\n

Conservative justices have spent years at war with two words. I know you\u2019re thinking it\u2019s something like \u201cequal protection\u201d or \u201creproductive rights,\u201d or \u201cbasic ethics,\u201d but let\u2019s be serious \u2014 they already won those wars. The two words that get the conservatives riled up these days are \u201cshadow docket.\u201d Samuel Alito blasted the media for using the term to create the impression that the Supreme Court \u201cis deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view<\/a>,\u201d just because the Supreme Court is, in fact, deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view. Brett Kavanaugh even channeled his inner Gretchen Wieners seeking a \u201cfetch\u201d-esque rebrand, hoping the term \u201cinterim docket\u201d might catch on<\/a> to make the flurry of consequential constitutional decisions rammed through without briefing or written opinion seem less\u2026 shady.<\/p>\n

Well, maybe they\u2019re right! Maybe it is time to drop the shadow docket. Not because the Court\u2019s aggressive abuse of the procedure is any more legitimate, but because the metaphor broke. A shadow needs something real to stand in the light, while the shadow is the smaller, murkier thing trailing behind. <\/p>\n

But now, the shadow docket is the Supreme Court\u2019s preferred way of doing business. The outlier is when the justices deign to respect transparency.<\/p>\n

ProPublica set out to put numbers behind the shadow docket<\/a>. Analyzing the Court\u2019s records, and excluding simple administrative requests and capital cases that have long lived on the emergency docket, ProPublica found back in July<\/a> that the shadow has overtaken the merits docket:<\/p>\n

\n

I discovered that in the term that ended in 2025, the justices issued more substantive decisions on their emergency docket than in cases argued in open court. Experts told me this was likely the first time this has happened in the court\u2019s modern history.<\/p>\n<\/blockquote>\n

The Supreme Court issued 63 shadow orders in the term ending last year, to only 56 with argument and real, written and signed majority opinions. This year isn\u2019t looking much better.<\/p>\n

When the kitchen door handles more traffic than the front door, it\u2019s just the front door now. The briefing-argument-signed-opinion routine everyone learned in school \u2014 and which underpins the judiciary\u2019s entire claim to legitimacy \u2014 is now the side project. We shall henceforth dub the merits docket as the \u201ctransparent docket,\u201d a quaint exhibition the justices run from October through June in between unbriefed and unexplained rulings to rewrite constitutional order.<\/p>\n