Supreme Court’s ‘shadow docket’ brings hasty decisions with long‑lasting implications, outside of its usual careful deliberation

Wayne Unger, Quinnipiac University

The recent publication of confidential Supreme Court memoranda by The New York Times has brought to light a pivotal moment in the court’s history. “The birth of the Supreme Court’s shadow docket has long been a mystery,” wrote reporters Jodi Kantor and Adam Liptak. “Until now.”

Originally coined by legal scholar William Baude, the term “shadow docket” refers to the Supreme Court’s emergency docket, which, as Baude wrote, includes “a range of orders and summary decisions that defy its normal procedural regularity.”

That’s law professor-speak for cases that are given abbreviated consideration and accelerated review by the justices, all out of public view – what The New York Times story referred to as the court “sprinting.” These cases aren’t included in the annual list of cases the justices have chosen to consider and that are presented by attorneys in public sessions, called “oral argument,” at the court.

During the second Trump administration, such shadow docket cases have proliferated as President Donald Trump has continued to push boundaries, challenge precedents and expand executive power. These cases have typically involved a request by the presidential administration “to suspend lower court orders” that temporarily block “an administration policy from taking effect,” according to liberal legal advocacy group the Brennan Center for Justice at New York University School of Law.

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