What is the shadow docket of the U.S. Supreme Court?
“The Supreme Court’s shadow docket refers to emergency decisions made without the usual full briefing and oral arguments, often resulting in quick, unsigned rulings. This process is used for cases that require immediate action, typically when the Court believes that delaying a decision could cause irreparable harm.” (scotusbolog.com)
How has the Roberts’ Court been using the shadow docket?
The Roberts’ Court has used the shadow docket to make “temporary decisions” that have long-lasting impacts on individuals and groups without any explanation for their actions, or any guidance to lower court judges’ decision making.
It has used the shadow docket to deport illegal immigrants to countries like Sudan without due process protections to the deportees. The decisions are temporary, but the effects upon those deported can be long-lasting and deadly.
Decisions from the shadow docket have meant it is now legal for I.C.E. officers to arrest individuals based solely upon their skin color, their accents, and their day labor status.
How is eligibility for the shadow docket determined by SCOTUS?
What the six-justice conservatives deem an “emergency” frequently favors President Trump’s actions, which are often clearly unconstitutional. Each year there are about 9,000 cert petitions requesting SCOTUS to hear a case. In the last eight months, President Trump sent 25 emergency requests. “Of those 25 requests, the court has ruled on 24 of them via the shadow docket, siding with the president 21 times” (nhpr.org).
“On Thursday, September 4, the Trump administration filed another urgent application asking the Justices to block a federal appeals court ruling requiring reinstatement of a fired Federal Trade Commission commissioner.”
“News reports indicated the administration was preparing another major case concerning presidential authority to impose tariffs under the International Emergency Economic Powers Act, which could also arrive on the emergency docket.”
“These events underscore how the shadow docket increasingly becomes a primary venue for high-stakes political and constitutional battles” (govfacts.org).
The Harvard Political Review made this comment about increased use of the shadow docket by SCOTUS:
“In the 2024-25 Supreme Court term, 111 cases were decided by shadow docket — greater than a 150% increase from the 2023-24 term. This massive spike between terms demonstrates a dangerous expansion of the shadow docket. If the shadow docket continues to expand in this way, there could be serious consequences for the American judicial system.”
“The Court shows no signs of slowing down with its use of the shadow docket, which could have the unintended effect of decreasing confidence in an already unpopular Supreme Court. Indeed, as of 2023, less than half of America maintained a favorable view of the Supreme Court. “
“Public disapproval of the Supreme Court is bad for the American judicial system, as it shows that the Court is not acting in the way that the people have entrusted it to. Therefore, to maintain and improve confidence with the American people, it is imperative that the Supreme Court curbs its use of the shadow docket and moves toward more transparent solutions for cases that justices do not deem worth their time” (https://theharvardpoliticalreview.com/supreme-court-shadow-docket/).
Precedents are being set about First Amendment safeguards with the firing of Jimmy Kimmel from ABC, based upon the threat of the network losing its F.C.C. license. American soldiers have been stationed in large cities like Los Angeles and Washington D.C., with threats to Chicago, Memphis, and even Seattle. President Trump fired a Federal Reserve governor on dubious and unproven charges. This decision was overturned by an appeals court, but may find its way to the shadow docket as well.
It seems clear that SCOTUS is not playing the role of preserving the checks and balances set down by the Constitution. Instead, the Supreme Court is abusing the emergency powers of the shadow docket to further the wishes of President Trump.
We are living in perilous political times.
I recommend watching: https://www.youtube.com/watch?v=852RlYyMVgg
