Why the shadow docket should concern us all

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

The Supreme Court’s emergency docket has taken on great significance in recent weeks as the justices have upheld a number of Trump administration policies, often with no explanation and sometimes implicitly overruling long-standing precedents. What has happened and why should we be concerned? 

Recent rulings

The Supreme Court long has had an emergency docket. These are matters where a party comes to the court for an order on an emergency basis without full briefing and oral argument. For example, those facing the death penalty often have gone to the court seeking a last-minute, emergency stay of execution. But as Stephen Vladeck documented in his excellent book, The Shadow Docket, over the past decade there was a notable growth in matters decided by the court on its emergency docket.

Since Professor Vladeck’s book was published in 2023, the emergency docket has taken on even greater significance. In the 2023-24 term, there were 44 matters on the emergency docket. In the 2024-25 term, through June 27 (the last day decisions were released), there were 113 matters on the emergency docket.

In the past two months, the court has issued a number of important rulings on its emergency docket concerning the legality of actions by President Donald Trump. Virtually all have been 6-3 rulings, with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissenting. 

On May 22, in Trump v. Wilcox, the court overturned a preliminary injunction by a district court that prevented Trump from removing Gwynne Wilcox from serving as a commissioner on the National Labor Relations Board and Cathy Harris from the Merit Systems Protection Board. Long-standing Supreme Court precedents allow Congress to limit the firing of heads of federal agencies. Federal laws prohibited them from being fired without “cause,” and there was no claim that standard was met. Nonetheless, the court allowed their removals while their cases are litigated.

On June 6, in Social Security Administration v. American Federation of State, County, and Municipal Employees, the Supreme Court paused the district court’s preliminary injunction blocking Department of Government Efficiency team members and affiliates from accessing Social Security Administration record systems.

On June 23, in Department of Homeland Security v. D.V.D., the court lifted a district court order that prevented immigrants from being deported to countries not listed on their removal orders. The district court had found that the individuals were not given due process. Specifically, they were not given sufficient notice or a meaningful opportunity to challenge their deportation based on their fears for their safety, and the judge was concerned the individuals could be subjected to torture or death upon arrival. Without explanation, the Supreme Court allowed the deportations to go forward while the case winds its way through the justice system, which could take years. On July 3, the court reaffirmed this, allowing the individuals to be sent to South Sudan even though they had no contact with this country.

Several recent Supreme Court orders have lifted decisions limiting firings. On July 8, in Trump v. American Federation of Government Employees, the court issued a stay of a district court’s preliminary injunction preventing firings of government employees in many federal agencies. On July 14, in McMahon v. New York, the court lifted a district court’s preliminary injunction against mass firings at the Department of Education with the stated goal of eliminating that department. And on July 23, in Trump v. Boyle, the Supreme Court overturned a preliminary injunction preventing the firing of three members of the Consumer Product Safety Commission who were protected from removal except when there was “cause” for firing.

What’s wrong?

There is much that is deeply troubling about the court’s deciding important matters on the shadow docket.

Significant rulings without the benefit of full briefing, oral argument, and deliberation among the justices. As a lawyer, I want the opportunity to fully brief my case and to argue it to the court. The procedures in every appellate court are based on the assumption that briefing and argument can matter greatly. Yet, the briefs in cases on the emergency docket are nowhere near as developed as those in cases on the merits, and there is no oral argument. Nor do the justices even meet to discuss these cases before issuing rulings on them. If one believes that briefing, arguing, and deliberating matters are essential to a system of law – and I certainly do – we should be deeply troubled by their absence when the court is issuing major rulings without them.

Additionally, although orders on the emergency docket should not be regarded as binding precedent (given the lack of full briefing and oral argument), it is clear that the court is treating them that way. In 2021’s Tandon v. Newsom, the court chastised the U.S. Court of Appeals for the 9th Circuit for not following its earlier rulings on the court’s shadow docket that provided religious exceptions from COVID restrictions. More recently, in Trump v. Boyle, the court saw the issue of Trump’s ability to fire Democratic members of the Consumer Product Safety Commission as having been resolved by its order from a few weeks earlier in Trump v. Wilcox.

Significant rulings without explanation. In many of these cases – such as Department of Homeland Security v. D.V.D., and McMahon v. New York – the court offered no explanation for its rulings. These are enormously consequential decisions: They allow people to be deported to countries where they have no connection and could face torture and death, and they permit Trump to effectively eliminate an agency created by Congress.

“Because I said so” never is persuasive or satisfying. And it certainly should not be regarded as acceptable when it is the Supreme Court resolving important issues – even matters of life and death – without the slightest explanation. Since its inception, the Supreme Court has traditionally written opinions to justify its rulings. The opinions convey that the justices are making reasoned decisions, not just exercising power. The explanations are important for the parties in the litigation, as well as to provide a rationale for the public. Opinions give guidance to lower courts, as well as to Congress and other legislatures.

When it comes to the emergency docket, the justices likely do not write opinions because they see a need for acting quickly. But this does not justify the lack of opinions. In these cases, there is no apparent harm to keeping the lower courts’ preliminary injunctions – which freeze the status quo – in place while the justices write opinions. Indeed, in these cases, there have been sometimes lengthy dissents. If the dissenting justices had time to write, a justice in the majority could do so as well. And if nothing else, if there truly was urgency, the justices could issue their order and then follow it later with an opinion.

Implicitly overruling long-standing precedent on the shadow docket. In 1935, in Humphrey’s Executor v. United States, the court unanimously upheld the ability of Congress to limit the removal of members of federal agencies. Under the Federal Trade Commission Act, the president could fire a commissioner only for “inefficiency, neglect of duty, or malfeasance in office.” The court explained that Congress, pursuant to its powers under Article I, could create independent agencies and insulate their members from presidential removal unless good cause for firing existed. The court declared: “The authority of Congress . . .  includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.”

Several of the recent rulings by the Supreme Court have involved Trump firing individuals – members of the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission – who enjoy similar protections from removal as in Humphrey’s Executor. Nonetheless, the Supreme Court has allowed these individuals to be fired, concluding that the Trump administration had a substantial likelihood of prevailing on the merits.

Kagan wrote a dissent in Trump v. Wilcox, joined by Sotomayor and Jackson, lamenting that “[o]ur emergency docket, while fit for some things, should not be used to overrule or revise existing law.” She explained that the court’s ruling “allows the President to overrule Humphrey’s by fiat.”

Although the emergency docket long has existed, I cannot think of other instances where the Supreme Court used it to effectively overrule long-standing precedent.

Ignoring the standards of appellate review. Any lawyer who handles appeals constantly focuses on the standards of appellate review. But the Supreme Court in handling matters on its emergency docket appears to pay little attention to them. 

It is long established that a lower court’s grant or denial of a preliminary injunction should be overturned only for “abuse of discretion.” This is a difficult standard to meet. But the Supreme Court in reviewing lower court decisions seems to completely ignore whether it is likely to conclude that there was an abuse of discretion in issuing the preliminary injunctions. Indeed, overall, the court has been giving little deference to federal district courts and courts of appeals in the matters on its emergency docket.

Also, a crucial factor in granting or denying a stay is supposed to be whether the plaintiff will suffer an irreparable injury without it. In many of these cases, such as sending people to South Sudan, the injury to the plaintiffs is grave, while the harm to the government is minimal in delaying Supreme Court relief until the case can be heard on the merits. Yet, this too seems to be absent from the court’s analysis.

Conclusion

Regardless of one’s views of the merits of these cases, all should be troubled by the manner in which the court has been deciding matters on its emergency docket. It is not too much to ask of the justices to follow long-established procedures for hearing and deciding cases, especially when ruling on important matters with great consequences.