Ratio Decidendi is a recurring series by Stephanie Barclay exploring the reasoning – from practical considerations to deep theory – behind our nation’s most consequential constitutional decisions.
Last Saturday, the New York Times published a trove of internal Supreme Court memoranda from February 2016 and declared that the five-day deliberation over President Barack Obama’s Clean Power Plan marked the birth of the court’s modern “shadow docket.” Stephen Vladeck, writing before the leak and again after it, made the same claim: the Feb. 9, 2016 rulings were, he wrote, “the birth of what we might call the modern emergency docket.” Jack Goldsmith, pushing back against the broader Times framing, narrowed the point but did not abandon it – the 2016 order, on his account, “fairly marks the beginning of the Court’s modern active engagement with presidential initiatives via interim orders.”
Each of these accounts locates the emergency docket’s initial engagement with presidential initiatives on a single winter evening in 2016. Each is wrong. An earlier interim order blocking an executive branch regulatory program as applied to a large group of challengers was not entered by Chief Justice John Roberts. It was entered by Justice Sonia Sotomayor, acting alone, more than two years before the Clean Power Plan application landed at the court. And her approach was adopted not long after by a unanimous Supreme Court.
What the reporting claims
The Times story is thorough, but the framing is unmistakable. Jodi Kantor and Adam Liptak describe the February 2016 orders as the birth of a secretive track the court has since used to make many “major decisions” on presidential power. The court’s five-day rush, on their account, was a rupture. Justice Elena Kagan expressed the following concern in her private memo: “As far as I can tell, it would be unprecedented for us to second-guess the D.C. Circuit’s decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.” Vladeck’s February anniversary piece, which the Times quotes, had made the same point. Prior to 2016, Vladeck wrote, the court had “virtually no examples of full Court emergency relief respecting national (or even non-election-related state) policies prior to the Clean Power Plan orders.” Goldsmith, writing on Sunday in Executive Functions, called the Times reporting “tendentious” but acknowledged the precedent-setting function of the CPP orders in narrower terms: they marked the beginning of the court’s “modern active engagement with presidential initiatives via interim orders.”
These are different versions of the same claim. On all of them, the emergency docket’s engagement with major presidential initiatives began on Feb. 9, 2016.
The problem with the claim
The claim fails even on its narrowest formulation. By the time West Virginia’s application reached Roberts’ desk, the Supreme Court had been enjoining significant applications of executive branch regulatory programs for at least two years. The court had been doing so in exactly the procedural posture the Clean Power Plan application would later present: a very short interim order, issued before any appellate court had reached the merits, in response to a brief procedural stay denial below.
A key early order came from a Democratic appointee. And a subsequent order was ratified by the full court without a recorded dissent.
Sotomayor’s New Year’s Eve
On Sep. 24, 2013, the Little Sisters of the Poor sued the Department of Health and Human Services in the District of Colorado. At issue was no peripheral rulemaking. The Affordable Care Act was Obama’s signature domestic achievement, and the contraceptive mandate had emerged as one of its most politically contested features – litigated, protested, and debated in the presidential campaign cycle then just concluded. Fifteen months earlier, the court had narrowly upheld the ACA’s individual mandate in NFIB v. Sebelius. By late 2013, dozens of challenges to the contraceptive mandate were pending in the lower courts. The Little Sisters argued that the mandate, promulgated by regulation rather than required by the ACA itself, forced them to facilitate the provision of coverage they understood as a grave violation of Catholic moral teaching.
The district court denied their preliminary injunction motion on December 27. The U.S. Court of Appeals for the 10th Circuit denied a request for an emergency injunction pending appeal on December 31. Enforcement was set to begin at midnight.
Sotomayor, as circuit justice for the 10th Circuit, received the Little Sisters’ emergency application that evening. She granted it within hours, before she herself led the ball drop in Times Square that New Year’s Eve. Her order was only one paragraph long and issued without merits briefing, oral argument, or explanation.
It enjoined the federal government from enforcing a premier presidential regulatory initiative before the 10th Circuit had ruled on whether the district court had correctly denied preliminary injunctive relief. The New York Times editorial board immediately criticized the ruling as “perplexing,” arguing that Sotomayor had granted an “audacious” request. The criticisms focused in part on the fact that “[a] federal trial court denied a preliminary injunction . . . and a federal court of appeals declined to issue an injunction pending appeal” because they found interim relief unnecessary. Yet Sotomayor’s ruling went the other way.
The HHS contraceptive mandate was, in every relevant sense, a presidential initiative of a piece with the Clean Power Plan that would arrive at the court two years later. (And in fact, the Clean Power Plan, when it arrived two years later, would command nothing close to this level of political salience or legal traffic.) Congress had not directed the contraceptive mandate’s imposition. The ACA did not require coverage of contraceptives; that requirement was added by HHS through an interim final rule and then enforced against religious nonprofits whose objections the administration refused to accommodate. The regulation threatened fines that would have bankrupted the Little Sisters before any appellate court could adjudicate their claims – the same mootness-by-compliance problem that would animate the chief justice’s memo about the Clean Power Plan in February 2016. The Sotomayor order prevented that outcome. Indeed, the New York Times also published another article at the time explaining that Sotomayor had blocked the contraception mandate on insurance in a suit involving the nuns.
The impact of the court’s action here was not limited to a single justice. Three weeks later, on Jan. 24, 2014, the full court extended the injunction. The order was unsigned. It provided no merits reasoning. It enjoined the federal government from enforcing the mandate against the Little Sisters and against more than 400 additional Catholic organizations receiving benefits through the same Christian Brothers plan while their appeal was pending before the 10th Circuit. There were no recorded dissents. Justices Ruth Bader Ginsburg, Stephen Breyer, Sotomayor, and Elena Kagan – the four Democratic appointees then sitting – concurred in the court’s unsigned, unexplained order freezing a major application of an executive branch regulatory program before any appellate court had issued any thoroughly reasoned order or reached a final merits judgment.
By any metric the Times applies to the February 2016 orders, this was a modern emergency docket decision. An unsigned order. No merits briefing. No oral argument. An intervention ahead of the 10th Circuit’s full appellate resolution. A major decision limiting enforcement of a signature presidential initiative. And – a feature the 2016 orders notably lack – unanimity across the court’s ideological divisions.
Wheaton and Zubik
The line did not end with the Little Sisters. On July 3, 2014, the court granted an injunction pending appeal to Wheaton College, again before the U.S. Court of Appeals for the 7th Circuit had addressed the merits of Wheaton’s religious liberty claim. Sotomayor, joined by Ginsburg and Kagan, dissented. Breyer did not.
On April 15, 2015 – the same day the 3rd Circuit had denied a stay pending cert, and nearly seven months before cert was granted – the court recalled and stayed a mandate in Zubik, one of a set of seven religious nonprofit cases that would eventually be consolidated for Supreme Court review.
So by the time the Clean Power Plan application reached Chief Justice Roberts in January 2016, the court had already issued at least three of these interim orders (of which I’m aware). The February 2016 orders differed in the policy area involved and in the scale of the regulatory program they touched. But they did not differ in procedural kind. Kagan’s private complaint in 2016 – that second-guessing the D.C. Circuit without full briefing or a prior merits ruling was unprecedented – was, as a matter of the court’s actual practice, incorrect. The court had done it repeatedly, and she had joined such orders without dissent.
Some might say that these types of orders are different from the Clean Power Plan case, because they enjoin or stay the president’s rule as to many challengers, rather than invalidating the entire rule. But the New York Times’ description of the birth of the modern emergency docket hasn’t been limited to that context. It discusses “major decisions” affecting national power. Vladeck described the Clean Power Plan as unprecedented because there are “virtually no examples” of “emergency relief respecting national . . . policies.” And Vladeck and other critics haven’t been shy about lambasting the court’s more recent uses of the emergency docket that enjoined some but not all aspects of government policies. So, such a distinction would really be beside the point.
What actually drives these interventions
What has been unprecedented about the last decade is less about the court’s engagement on the emergency docket. That engagement has been a response. What has been unprecedented is, among other things, the executive action to which the court has responded – regulatory programs and enforcement actions designed, through their fine structures or compliance timelines, to impose the costs of capitulation before any court could reach the merits, rendering any merits review after the fact a nullity. Roberts voiced this exact concern in his Clean Power Plan memo, noting that the court had learned from recent experience showing that the EPA had found ways to “effectively implement an important program we held to be contrary to law.” The continuity in the court’s doctrinal response tracks that pattern, not partisan alignment.
The HHS mandate raised that problem in an acute form. The government had structured the regulation and its penalty regime so that compliance costs would accrue daily from the moment of enforcement. For a small religious nonprofit, the effect was to force capitulation or bankruptcy before any appellate court could adjudicate its religious claims. Justice Samuel Alito’s private 2016 memo, concerned that voluntary compliance with the Clean Power Plan would render merits review “a mere postscript,” voiced a concern that had been addressed – without dissent – in 2014.
The same structural concern has driven the court’s engagement with the current Trump administration. When the executive branch attempted to remove alleged Tren de Aragua members under the Alien Enemies Act on a timeline calculated to foreclose any judicial testing of the removals’ lawfulness, the court enjoined the removals on an emergency basis. When the administration sought to federalize and deploy the Illinois National Guard on contested statutory grounds, the court denied its stay application. When the administration sought emergency relief to remove a Federal Reserve governor, the court declined to resolve the application on the emergency docket and deferred it for full oral argument.
The Times reporting mentions none of these orders. Rather, its operative claim is that the Roberts court uses the emergency docket to empower presidents its majority favors and to rein in those it opposes. But that claim cannot be reconciled with the rulings above, which together have denied the current administration some of the emergency relief it has sought most aggressively. Nor can it be reconciled with the 2013-2015 orders in the Little Sisters line, which reach further back than the Times’ chosen starting point and begin with a Sotomayor order against a Democratic president.
The procedural posture of these cases may have some unique elements, but the principle behind them is not. What Abbott Laboratories recognized in 1967, and Ex parte Young in 1908, is that constitutional and statutory rights mean little if a regulated party must comply with a legal command in order to earn the privilege of contesting it – particularly where the costs of compliance are significant and the penalties for noncompliance are ruinous. Abbott permitted pre-enforcement review of FDA regulations whose compliance costs would otherwise have accrued before any court could test their validity. Young permitted federal injunctive relief against state enforcement of railroad rate laws whose penalties were calibrated to deter any carrier from contesting them in the first place. All of these cases share the same premise: that meaningful judicial review requires, at some point, the ability to pause enforcement before irreparable harm has already been done. The emergency docket’s interim injunctions against executive action are a modern application of that premise, not a departure from it. When the executive’s aggressive new tactics are designed to foreclose merits review, the longer legal tradition is often on the side of court intervention.
The real novelty
Even more unprecedented than the executive action that has driven the court’s engagement over the last decade is the leaking of the court’s deliberations in response. What is genuinely new about this episode is not what the court decided in February 2016. It is that the memoranda in which the justices debated what to decide are now in the newspaper.
The “shadow” papers are the third major trove of internal Supreme Court material the Times has published in two years, following the 2023 reporting on the court’s 2021 deliberations in the Texas abortion case and the 2024 reporting on the presidential immunity case. As Professor Stephen Sachs has written at Divided Argument, the May 2022 Dobbs leak led directly to an assassination attempt on Kavanaugh at his home the following month – aimed, Sachs argues, at preventing the draft opinion from securing his vote for the necessary majority. The identity of the current leaker remains unknown. What is known is that, somewhere inside a small institution, someone is feeding the press the private work product of justices who win internal arguments, with the evident purpose of exposing and punishing their reasoning.
The current commentary cycle is focused on the deliberations the leaks exposed. But how these materials are reaching print, and what that pattern will mean for the court’s capacity to function as a deliberative institution – has attracted far less attention. When any tentative vote or draft passage can be weaponized the moment it displeases someone with access, justices and their clerks cannot deliberate candidly. And a democracy that depends on their candor is the weaker for it.
What the papers actually show
The story the “shadow papers” tell, read alongside the cases the Times chose not to include, is not one of a court that stumbled into something novel on Feb. 9, 2016. It is one of a court that has been responding, for more than a decade, to a new and recurring problem: executive action, and at times lower-court action, whose design or pace would render ordinary merits review a formality.
That problem took one form when the HHS mandate threatened to bankrupt a small order of nuns before the 10th Circuit could reach their religious liberty claim. It took another when the Clean Power Plan aspired, in its own administrator’s words, to be baked into the system before the D.C. Circuit could rule. It took others when the current administration sought to remove deportees before any court could test the removals, to deploy the National Guard in the absence of a clear statutory predicate, and to remove a Federal Reserve governor without waiting for merits resolution. In each instance, the court intervened. Sometimes the court granted relief, and sometimes it denied relief. But it did so on the basis of the same underlying concern about whether judicial review would mean anything if the executive were permitted to act first and answer later.
The 2016 Clean Power Plan orders sit in the middle of that line. They do not begin it. An earlier emergency docket intervention against a presidential regulatory initiative in the modern era came on New Year’s Eve 2013, and it came from Justice Sotomayor. That is an inconvenient fact for the story the Times has chosen to tell. It is also the fact that best explains one of the important functions the emergency docket has actually been playing for the past decade – a check on executive overreach, across presidents of both parties.
Recommended Citation: Stephanie Barclay, The emergency docket’s mistaken birthday, SCOTUSblog (Apr. 22, 2026, 9:30 AM), https://www.scotusblog.com/2026/04/the-emergency-dockets-mistaken-birthday/