(NewsNation) — President Donald Trump’s administration has filed an unprecedented number of petitions to the Supreme Court’s so-called shadow docket, which have cleared the path for policies like deportations and federal firings largely by way of unsigned and unreasoned legal rulings.
In the nine months Trump has been in office, he has filed 28 distinct applications to the court’s emergency docket, which is also called the shadow docket due to the opaque rulings, according to data from Georgetown University law professor Stephen Vladeck, who is tracking shadow docket petitions closely.
The high court ruled in favor of the president at least 23 times on these requests, according to the data.
That number is more than three times the eight petitions filed in total during the 16 years former Presidents George W. Bush and Barack Obama were in office. Former President Joe Biden filed 19 petitions in his four-year term.
The Supreme Court can hear cases on an emergency docket, which has historically been sparingly used for time-sensitive matters like halting executions.
Since Trump took office, it has now become one of the major methods employed by the president to push through court decisions on high-stakes issues.
Legal scholars say the volume and grants of these petitions are highly problematic and concerning on many accounts.
“It’s certainly politicizing the court, and it’s politicizing everyone’s impressions of the court,” David Super, a Georgetown University Law professor, said. “The court is not writing long, thoughtful opinions to persuade readers that it has correctly analyzed the law. It’s simply picking a winner, and that winner is almost always the Trump administration.”
What happens on the Supreme Court’s ‘shadow docket’?
Most cases arrive at the Supreme Court through its merit docket, coming through lower court rulings, oral arguments and full briefings.
The other path is the shadow docket, which is utilized when immediate or emergency relief is needed as a case makes its way to the high court.
Because of the nature of emergency cases, rules that apply to the merit docket don’t apply to the shadow docket. These rulings are largely unsigned, provide little to no explanation, and are meant to be temporary, Carolyn Shapiro, co-director of Chicago-Kent College of Law’s Institute on the Supreme Court, said.
“The purpose (of the shadow docket) is kind of embedded in the standards that parties are supposed to meet in order to get a stay,” she said.
The Court has to find some kind of “irreparable harm” to the party that’s seeking the stay and that the case will likely make it to the high court and succeed, she added.
That doesn’t appear to be happening with the Trump administration, Shapiro said.
“One of the reasons why it’s so concerning is that the court is not only granting these, but granting these without actually examining the balance of equities,” she said. “It seems to be taking the view that when the government can’t do what it wants that’s enough for irreparable harm, that’s enough for a stay, and that’s never, ever, ever been the law.”
Without the Supreme Court showing some restraint in allowing these petitions to move forward in the shadow docket, the Trump administration will continue to utilize it, Super said.
“That door is now wide open and it seems that if (Trump) continues to prevail, then it sort of just enables the further use of it by him.”
What cases has Trump used the Supreme Court ‘shadow docket’ for?
Issues Trump has punted to the shadow docket that have succeeded include: Firings of independent agency members, removing legal protections for thousands of Venezuelan migrants, letting federal agents proceed with raids targeting people for deportation based on their race or language, halting nationwide injunctions blocking Trump’s policies before full litigation, deportations of immigrants to countries other than their own and banning transgender people from the military.
The White House has touted these as victories despite the temporary nature of the rulings.
The issues coming into the shadow docket are not low stakes but significant substantive issues that go far beyond the particulars of an individual case, Alan Morrison, a professor at George Washington University Law School, said.
Morrison filed a brief opposing the freezing of billions in USAID funds, which was stayed through the shadow docket.
“The problem here is that (the Supreme Court) is making law without telling anybody the reasons behind making the law, so nobody knows what the next case is supposed to do or not supposed to do,” he said.
“Most solicitor generals have been very cautious about asking the Supreme Court to step in, but this Solicitor General, not at all. And anytime that any significant case is lost, they go to the Supreme Court,” he said.
The high court is “encouraging the Solicitor General to keep taking these cases. After all, if you’re winning all the time, why should you stop?”
Not all Supreme Court justices on board with Trump’s use of the shadow docket
Several of the court’s liberal leaning justices wrote dissents within emergency docket rulings, calling out its high-stakes implications.
“I worry that permitting the emergency docket to be hijacked in this way, by parties with tangential legal questions unrelated to imminent harm, damages our institutional credibility,” Justice Ketanji Brown Jackson wrote while opposing the shadow docket ruling that allowed the dismantling of parts of the Department of Education.
“When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it,” Justice Sonia Sotomayor wrote in her dissent opposing firings in the Education Department. She added that the court’s “majority is either willfully blind to the implications of its ruling or naïve, but either way the threat to our Constitution’s separation of powers is grave.”
However, conservative Justice Amy Coney Barrett told SCOTUSblog that the court is mindful of the temporary nature of the emergency docket.
“One of the drawbacks of the emergency docket is that there’s no opportunity for percolation. There’s often not opportunity for a lot of reasoned opinions below, so we are in a position where we might be writing sooner than we want to be or with less information than we want to be. So, you know, sometimes less is more.”
Conservative Justice Samuel Alito defended the court’s use of the shadow docket in a 2021 speech saying, “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.”
Confusion in the lower courts
The Supreme Court is meant to be an appellate court that hears a select number of important cases that have been thoroughly decided in lower courts, but with the shadow docket, it’s disregarding all the other courts, Super said.
“We have many courts in this country staffed by competent judges who carefully listen to evidence and arguments, and when the Supreme Court centralizes all power in itself, we disregard the insight of those judges,” he said.
Additionally, he said, when the nation’s highest court says the Trump administration is likely to prevail on the merits, that makes consideration in lower courts seem “rather pointless.”
“When the court decides things on its shadow docket, it doesn’t hear oral argument, it doesn’t receive full briefing, it doesn’t write full opinions, so it isn’t the same kind of considered judgment that gives the Supreme Court its status in our legal system,” Super said.
Shapiro echoed the concerns, saying that shadow docket rulings are sent back down to lower courts, which then have to figure out what to do with little guidance.
Some of these lower courts have been “candid that they don’t know what direction they’re supposed to be following because the Supreme Court is, for the most part, not explaining itself.”
But Jonathan Adler, a William & Mary Law School professor, said the Supreme Court is arguably assisting the lower courts, which have been flooded with hundreds of lawsuits regarding the Trump administration.
Adler, who spoke at an event for the Federalist Society, said the high court may be thinking that “lower courts are doing too much. We’re going to scale that back because it’s not our place, and it’s for the executive branch and the legislative branch to figure that out.”
He added that “what they (emergency docket petitions) all have in common is that there’s a kind of clear argument that … district courts were a little too aggressive here,” he said.
