By: Chloe Schalit

Published: April 16, 2026

The Supreme Court’s emergency docket, often called the shadow docket,[1] is not new; it has been around as long as there has been a Supreme Court.^[2] Historically, the Court’s shadow docket decisions focused on death penalty cases;[3] however, the Supreme Court’s increased use of these decisions has allowed the federal government to enact policies through emergency stays of lower court injunctions is a new result of the second Trump administration.^[4] Although requests for stays of execution remain part of the modern shadow docket,[5] the number of emergency stays of lower court injunctions has increased at an unprecedented rate in the past year.[6] Both Supreme Court Justices and the United States Department of Justice are feeling the rise in emergency docket orders through an increased workload, requiring more time and the need to adjust quickly to frequent emergencies.[7]

Common Critiques of the Shadow Docket

Although the shadow docket has traditionally been unproblematic, the substance and procedures of recent shadow docket cases has been increasingly scrutinized.[8] Common criticisms include the absence of reasoning, the permanent nature of orders that are meant to be temporary, and the apparent partisanship of many recent decisions. Through discussing critiques of the shadow docket using immigration cases as an illustration, I argue that the shadow docket has taken on a new meaning and has produced a largely negative impact. Without a fundamental shift in the shadow docket, it is likely that the broader public will entirely lose trust in the Supreme Court—if they have not done so already.

Lack of Explanation

A common critique of the shadow docket is that the decisions lack a written opinion explaining the Justices’ reasoning.[9] Shadow docket decisions rarely come accompanied by the majority’s legal reasoning because of the speed at which Justices need to hand down emergency opinions,[10] and because the shadow docket does not involve full briefing or oral argument.[11] In a 2022 speech, Justice Amy Coney Barrett advised individuals to “read the opinion” before deciding whether the Court’s actions were political, but this is often impossible for the Court’s shadow docket decisions due to absence of legal reasoning in the decisions.[12] In recent remarks, Justice Elena Kagan criticized these unreasoned decisions and stated that “[c[ourts are supposed to explain things.”[13] Not only do the unreasoned opinions prevent the public from understanding the Supreme Court’s ruling, they also leave lawyers and lower court judges unclear about how to interpret these orders.[14] A number of federal judges have spoken out, either publicly or anonymously, to voice their own confusion and frustration about how to proceed given the high number of unexplained emergency orders.[15]

The lack of explanation is even more noteworthy in recent contexts involving cases with substantive consequences for impacted individuals; where people are left guessing about how—if at all—a Supreme Court decision should change their behavior.[16] An example of the confusion and chaos caused by the Court’s unexplained shadow docket orders is Department of Homeland Security v. D.V.D. This case is about whether the Trump Administration can send noncitizens to third countries—that is, countries that are not a person’s country of citizenship or the United States—without first allowing them to argue that they may be tortured if deported to these third countries.[17] Judge Brian Murphy, a judge in the United States District Court for the District of Massachusetts, granted the Plaintiff’s preliminary injunction, certified the class, and held on April 18, 2025 that the government needed to provide noncitizens with notice and the opportunity to challenge their third country removal.[18] Then, on May 21st, Judge Murphy held that the government violated the preliminary injunction by failing to provide some class members with an opportunity to contest their removal to a third country.[19] In a June 23rd unexplained shadow docket order, the Supreme Court stayed the lower court’s preliminary injunction.[20] Subsequently, Judge Murphy ruled that his May 21st order was still in effect as to the particular plaintiffs.[21] The government requested that the Supreme Court clarify its decision, and on July 3rd, the Court confirmed that its prior order applied to both the April 18th and May 21st orders.[22] Justice Sotomayor’s dissent empathized with the efforts of the District Court, recognizing the inherent confusion from the Supreme Court’s order.[23] The back and forth of this case demonstrates the consequences of the confusion that can arise when the Court fails to explain complicated shadow docket decisions.

The Permanent Nature of Temporary Decisions

Another critique of the modern shadow docket is that, despite its temporary purpose, these orders about consequential issues often “serve as the final word.”[24] In many cases, it is impossible to reverse actions required by shadow docket orders, even if the case is eventually reversed when the Supreme Court hears full briefing on the merits.[25]

One example of the practical permanency of shadow docket decisions is in Noem v. National TPS Alliance, where, the Supreme Court, in an unexplained shadow docket decision, allowed the government to terminate Temporary Protected Status for Venezuelans before it was supposed to expire.[26] This decision immediately stripped legal status from hundreds of thousands of noncitizens, putting many Venezuelans at risk of detention or deportation—something that cannot easily be undone, even if the outcome changes on the merits.[27] In her dissent, Justice Ketanji Brown Jackson questioned the importance of stripping legal status from Venezuelans, concluding her opinion by saying, “Because, respectfully, I cannot abide our repeated, gratuitous, and harmful interference with cases pending in the lower courts while lives hang in the balance, I dissent.”[28]

Partisanship of Decisions

The partisan nature of the shadow docket has received substantial criticism.[29] Defenders of the shadow docket argue that it is reasonable that a court with a conservative majority would decide these cases along ideological lines.[30] Still, this does not explain why many lower court judges appointed by Republican presidents have ruled against the Trump administration, and  perhaps reflects some particular partisanship in the Supreme Court.[31] For example, the Supreme Court has agreed with the Trump administration’s request for a stay, while refusing emergency stay requests from the Biden administration on strikingly similar facts.[32] This behavior indicates that Justices may be deciding cases with their personal ideology, rather than the law, in mind—which is particularly inappropriate for shadow docket cases that are not accessed on their constitutional merits.

Conclusion

Despite the problems with the modern-day shadow docket, there appears to be little political will to change course. While solutions have been proposed to address many of the critiques discussed above, they are reliant on the Supreme Court or Congress to implement the changes.[33] For example, the Court on its own could decide to start including reasoning and naming the voting Justices in emergency orders.[34] However, if the Court refuses to act, Congress also has the power to initiate change within the Supreme Court.[35] Congress can alter jurisdictional rules to redistribute cases away from the shadow docket and to the merits docket, or set the standards that the Court must use when granting emergency relief.[36]

Without fundamental change, the Supreme Court’s shadow docket should worry us all. Although the emergency docket is not inherently suspect, the Court is using the shadow docket with increased frequency to make substantial changes in the legal landscape without full briefing or explanation. These shadow docket orders regularly allow the government, especially Donald Trump’s administration, to enact sweeping new policies while litigation runs its course. Although it is possible that an eventual decision on the merits will stop these policies, in the meantime, people’s livelihoods and lives remain at risk. Polling has shown that approval and confidence in the Supreme Court have dropped in recent years, with these numbers reaching new lows in 2021 and 2022.[37] Without a transformation of the shadow docket, these decisions risk sliding farther away from what the emergency docket should look like—and destroying public trust in the Supreme Court and the law itself.

 

 

[1] William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015) (coining the term “shadow docket” to describe the Supreme Court’s actions that do not fall under the traditional merits docket).

[2] Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic 1, 12 (2023) [hereinafter Vladeck, The Shadow Docket] (describing the longstanding Supreme Court practice of “issu[ing] unsigned procedural orders shaping and structuring how the justices process and ultimately resolve each of the cases before them.”).

[3] Stephen Vladeck & Trevor N. McFadden, The Docket Debate, Bolch Judicial Inst. Duke L. Sch. 69, 70 (2024), https://judicature.duke.edu/articles/the-docket-debate/.

[4] Garrett Epps, Chamber of Secrets, Wash. Monthly (June 19, 2023), https://washingtonmonthly.com/2023/06/19/chamber-of-secrets/.

[5] Stephen I. Vladeck, Putting the “Shadow Docket” in Perspective, 17 Harv. L. & Pol’y Rev. 289, 296 (Summer 2023) (describing some of the most recently criticized Supreme Court orders involving stays, or pauses, of lower court injunctions).

[6] Compare id. at 293 (noting that during both terms of Presidents George W. Bush and Barack Obama from 2001 until 2017, the solicitors general requested emergency relief eight times total, and during the first Trump administration, the solicitors general requested emergency relief forty-one times in four years), with Stephen Vladeck, Bonus 157: Why the Supreme Court Keeps Granting Stays to President Trump, One First (June 12, 2025), https://www.stevevladeck.com/p/bonus-157-why-the-supreme-court-keeps [hereinafter Vladeck, Bonus 157] (noting that during the four years of the Biden presidency, the administration made nineteen requests for emergency relief to the Supreme Court), and Andrew Chung, U.S. Supreme Court Expands its ‘Emergency’ Docket – And Trump’s Power Too, Reuters (Oct. 2, 2025), https://www.reuters.com/legal/government/us-supreme-court-expands-its-emergency-docket-trumps-power-too-2025-10-02 (noting that from January until October 2025, the Trump administration has made twenty-three emergency requests); see also Supreme Court Shadow Docket Tracker – Challenges to Trump Administration Actions, Brennan Ctr. for Just. (last updated Dec. 23, 2025), https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket-tracker-challenges-trump-administration.

[7] Kimberly Strawbridge Robinson & Suzanne Monyak, Biden Top Supreme Court Lawyer Laments Shadow Docket Effect, Bloomberg L. (May 2, 2024), https://news.bloomberglaw.com/us-law-week/biden-top-supreme-court-attorney-laments-shadow-docket-effect (asserting that the Justice Department asked to add two more attorneys in its 2024 budget justification, acknowledging its increased workload).

[8] Sarah Voehl, Note, Illuminating the Shadow Docket: On the Increasing Impacts of This Evolving Judicial Procedure, 23 Nev. L.J. 945, 951 (Spring 2023).

[9] Baude, supra note 1, at 14 (emphasizing that readers of Supreme Court shadow docket opinions are left to guess Justices’ reasoning). Parenthetical does not add to the argument—more substance is the in next sentences and parentheticals

[10] See Ashley Rowland, Justice Samuel Alito Defends Supreme Court’s Use of Emergency Docket, Notre Dame News (Oct. 1, 2021), https://news.nd.edu/news/justice-samuel-alito-defends-supreme-courts-use-of-emergency-docket/ (quoting Justice Alito as saying, “Journalists may think that we can just dash off an opinion the way they dash off articles… when we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences, so we have to be careful about every single thing that we say.”).

[11] See Erwin Chemerinsky, Why the Shadow Docket Should Concern Us All, SCOTUSBlog (Aug. 4, 2025), https://www.scotusblog.com/2025/08/why-the-shadow-docket-should-concern-us-all/.

[12] Vladeck, The Shadow Docket, supra note 2, at 245.

[13] Alicia Bannon, Supreme Court Must Explain Why It Keeps Ruling in Trump’s Favor, Brennan Ctr. for Just. (Aug. 14, 2025), https://www.brennancenter.org/our-work/analysis-opinion/supreme-court-must-explain-why-it-keeps-ruling-trumps-favor.

[14] Voehl, supra note 8, at 956.

[15] Mattathias Schwartz & Zach Montague, Federal Judges, Warning of ‘Judicial Crisis,’ Fault Supreme Court’s Emergency Orders, N.Y. Times (Oct. 11, 2025), https://www.nytimes.com/2025/10/11/us/politics/judicial-crisis-supreme-court-trump.html.

[16] Adam Liptak, Kavanaugh Defends Supreme Court’s Terse Emergency Orders, N.Y. Times (July 31, 2025), https://www.nytimes.com/2025/07/31/us/politics/kavanaugh-supreme-court-emergency.html.

[17] Amy Howe, Court Allows Trump Administration to Move Forward in Sending Group of Immigrants to South Sudan, SCOTUS Blog (July 3, 2025), https://www.scotusblog.com/2025/07/court-allows-trump-administration-to-send-group-of-immigrants-to-south-sudan/.

[18] Stephen Vladeck, 164. Justice Kagan’s D.V.D. Concurrence, One First (July 4, 2025), https://www.stevevladeck.com/p/164-justice-kagans-dvd-concurrence [hereinafter Vladeck, 164].

[19] Id.

[20] Dep’t of Homeland Sec. v. D.V.D., 145 S. Ct. 2153 (2025).

[21] Vladeck, 164, supra note 18.

[22] Dep’t of Homeland Sec. v. D.V.D., 145 S. Ct. 2627, 2629 (2025).

[23] Id. at 2632 (Sotomayor, J., dissenting) (“[a]ny suggestion that the District Court failed to carry ‘into execution’ this Court’s mandate (which said no more than that the Government’s application was ‘granted’) is patently inappropriate.”).

[24] Bannon, supra note 13.

[25] Id. (recognizing “[o]nce agencies are gutted, migrants deported, and major policies implemented, it is often not possible to ever unring the bell and return to the prior status quo.”).

[26] Noem v. Nat’l TPS All., 222 L. Ed. 2d 1241, 1241 (2025).

[27] Breaking: TPS Holders and Advocates Denounce Supreme Court Ruling in NTPSA 1 v. Noem, Nat’l TPS All., https://www.nationaltpsalliance.org/breaking-tps-holders-and-advocates-denounce-supreme-court-ruling-in-ntpsa-1-v-noem/ (last visited Dec. 7, 2025).

[28] Noem v. Nat’l TPS All., 222 L. Ed. 2d 1241, 1243 (2025) (Jackson, J., dissenting).

[29] Vladeck, Putting the “Shadow Docket” in Perspective, supra note 5, at 296 (evaluating the seemingly partisan outcomes of shadow docket cases).

[30] Pablo Das et al., Deep in the Shadows?: The Facts about the Emergency Docket, 109 Va. L. Rev. Online 73, 79 (2023).

[31] Vladeck, Bonus 157, supra note 6.

[32] Vladeck, The Shadow Docket, supra note 2, at 156.

[33] Vladeck, The Shadow Docket, supra note 2, at 254.

[34] Id.

[35] Id. at 255.

[36] Id. at 256.

[37] Voehl, supra note 8, at 960.