Recent conversation about the Supreme Court has centered around its emergency docket, also known as the shadow docket. In the media, the shadow docket has been presented as an avenue for the executive branch to evade the process of checks and balances, creating a sense of distrust between the public and the Supreme Court. But, despite how they have been described lately, the shadow docket and the Court are not as evil as they may seem. To fully form an opinion on the shadow docket, it is important to recognize what it is, how it has changed recently, and the pros and cons regarding its usage. 

The merit docket—more familiar to the general public—is where the most publicized Supreme Court cases fall. For a case to be added to the merit docket, at least four justices must agree the case has sufficient “merit” to be heard by the court. Once the case has been approved for a hearing, petitioners and respondents create briefs, which will be reviewed by the Justices as they prepare to hear oral arguments. The Justices will hear the oral arguments, enter into conference to discuss amongst themselves, and then announce their decision and hand it down to the public. On average, the Court hears oral arguments for about 70-80 cases each year. These arguments are open to the public and livestreamed so that individuals across the nation can remain aware of what is occurring in the Court.

The shadow docket—which has historically received minimal attention—is where the majority of cases the Supreme Court handles fall. The term “shadow docket” was coined in 2015 by William Baude, professor at the University of Chicago. Prior to Donald Trump’s presidency, this term only referred to low-profile cases that received little attention from the American public. The docket handles emergency applications, procedural motions, and stays (orders to temporarily suspend a legal proceeding). These cases are typically handled privately and opinions are rarely released on them. Since the shadow docket does not follow the same extensive procedure as the merit docket, decisions for these cases are released within a shorter time frame. While the shadow docket has been referred to as a “travesty” and “deeply troubling,” it is a legal practice that is justified by the rules in Part Five of the Rules of the Supreme Court.

The shadow docket is not a new concept: it has existed for decades. However, the way it is being utilized now marks a shift in the Court’s practices. More cases are on the shadow docket now than ever before, with more than 110 applications filed in the 2024-2025 term. This was not always the case. In fact, ignoring Trump’s presidency, cases filed by previous presidential administrations made up the minority of the docket. During the presidencies of George W. Bush and Barack Obama combined, only eight shadow docket cases were filed. During Joe Biden’s presidency, he filed 19 total shadow docket cases. But, as a result of Trump’s heavy utilization, the shadow docket is rarely referred to by that name anymore; instead, it is now commonly known as the “emergency docket,” owing to the immense number of applications the administration is filing and the speed at which they are requesting a decision. In his first term, the Trump administration filed 41 emergency applications. So far in his second term, 31 emergency applications have been filed relating to the administration. Of these 31 emergency applications, 27 decisions have already been issued by the Supreme Court, emphasizing the speed of this docket. 

It is important to note that, although the shadow docket is on a shorter timeline, there are still certain conditions that must be met in order for the application to be approved, as outlined in Justice Amy Coney Barrett’s book, Listening to the Law:

1. A reasonable probability that four justices would grant cert on the issue. Cert, short for certiorari, is a formal request from a petitioner made to a higher court to review a lower court’s decision. This condition means that if the Court were to take the full amount of time to review this case, at least four justices would deem it worthy of being heard by the Court. 
2. A fair prospect that the applicant would win on the merits before the Court. According to this condition, in order for a case on the shadow docket to be considered, a strong argument must exist. Cases without strong arguments have no need to be considered by the higher court.
3. A likelihood that the applicant will suffer irreparable harm if the Court dismisses emergency relief. According to Justice Barrett, “a showing of irreparable harm is particularly important, because irreparable harm is the justification for granting immediate relief rather than letting the case run its course in the courts below.” Although it cannot be confirmed due to the lack of opinions on these cases, it is likely that this condition is what prompts the Court to initially side with the executive branch in shadow docket applications. 
4. A grant of relief is consistent with principles of fairness. According to this condition, decisions made for shadow docket cases must remain consistent with precedent even though the case is not following all procedures of the merit docket.

All of these conditions are extremely important in the Court’s decision to deny or approve emergency relief. As Justice Barrett notes, “you shouldn’t assume that the denial of emergency relief reflects the Court’s belief that the applicant has a losing legal argument. More considerations are at play.” These conditions also undermine claims that the Supreme Court baselessly sides with the executive branch whenever they file an emergency application. Although news outlets have pointed out that the Court is “siding with the president again and again,” it is not the president they are siding with—it is the law. 

There are benefits to having the emergency docket. Not every case can be heard in person by the Court, since asking that of the Justices is impossible. So, the emergency docket provides more individuals the opportunity to have their case considered by the Court. Additionally, the speed of the docket enables more decisions to be released within a quicker timeframe. As a result of the COVID-19 pandemic, court backlogs became an issue for both lower and upper courtrooms. Consequently, it has taken longer for individuals to receive the decisions that they need to hear. The existence of the shadow docket and emergency relief has helped prevent extreme backlogs. 

The next positive point of the emergency docket is highly debated; however, it is a highly valuable aspect of the docket that too many people have come to false conclusions about. As noted earlier, cases on the docket rarely have opinions released with their decisions. Yet, this is not as large a problem as media outlets have made it out to be. Decisions on the emergency docket are only preliminary judgments on the likelihood that a case may succeed. They are not final decisions. Opinions issued by the Justices make the reasoning behind the Court’s decision transparent, and they set precedent for lower courts in future cases. Issuing opinions on emergency docket cases makes their decision seem more permanent; however, the whole point of the emergency docket is to provide a temporary decision. Many of the decisions in emergency docket cases siding with the Trump administration are stays, not case dismissals. When the Supreme Court issues a stay, it temporarily restricts the lower court from continuing the proceedings of the case. 

Consider Trump v. Slaughter. On Sept. 4, 2025, an application for a stay was brought forward by President Trump and Andrew Ferguson, Chairman of the Federal Trade Commission. The applicants requested a stay for the judgment of the United States District Court for the District of Columbia, in which the court “ordered the reinstatement of a high-level officer wielding substantial executive authority whom the President has determined should not exercise any executive power.” The “high-level officer,” in this case, was Rebecca Kelly Slaughter, who was sworn in as Federal Trade Commissioner in 2018 and fired by President Trump on March 18, 2025. President Trump had a strong argument to request a stay, as the case was similar to Trump v. Wilcox, a previous case concerning the President and the firing of a prominent government figure, in which the court agreed “the government faces irreparable harm ‘from an order allowing a removed officer to continue exercising the executive power.’” Ultimately, on Sept. 22, 2025, the application for stay was granted, and the July 17 order from the District Court of Columbia was stayed; but, the stay is not the end of the story. Per the directions of the Supreme Court, the parties were directed to argue:

1. Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled.
2. Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

The case is still not over: it was argued in the December 2025 session, but a decision has not been announced by the Court. The stay will end once the Supreme Court sends down its judgment. Trump v. Slaughter should be comforting, not alarming, to the American people. There is clear evidence that the President had merit and deserved to have his case considered by the court. Additionally, although the original judgment was issued rapidly, the final decision has not been answered, and the Court is taking the necessary time to fully consider the case and its potential impact on the law and precedent. 

Now, not everything is good about the shadow docket, and the criticism it receives is absolutely warranted. Supreme Court Justices themselves have spoken out against the frequent usage of emergency applications. Justice Barrett wrote, “the judicial system functions better when litigants and lawyers have the opportunity to fully explain their positions in their briefs, provide the Court the benefit of oral argument, and offer the Court the opportunity to make a deliberative and well-reasoned decision in consultation with one another. When asked about her feelings regarding the absence of briefs, oral arguments, and consultation in shadow docket cases, Justice Elena Kagan stated, “one should be hesitant about making decisions without any of those things…unless we really have to.” Justice Sonia Sotomayor, speaking after the decision in Noem v. Perdomo, criticized the absence of opinions in highly-controversial cases, as “For each of those complex issues, it will be anyone’s guess whether the majority thought there were evidentiary deficiencies, legal errors, or a combination of both.” When members of the Court itself speak against the practice, it is clear that something needs to change. The lack of opinions on emergency docket cases from the Supreme Court is the main issue with the docket, as lower courts need to understand why a certain decision was made so that they can act accordingly when a similar case is presented to them. While Justice Barrett is valid in her concern about releasing opinions on temporary decisions, the lower courts and the American public deserve to understand the reasoning behind the conclusion, even if adjustments are made in the future when the case is more closely considered. The opinions released could prove that this is a provisional decision that could change over time. More information is better than none. The lack of opinions has also contributed to distrust between the public and the Court. Without opinions, it can seem that the Court is blindly siding with the President and his administration. Releasing opinions that explain the reasoning behind temporary decisions could establish a more trusting relationship between American citizens and the Justices, which could then aid in moving the political culture away from extreme reluctance and suspicion between citizens and their government. 

While the Supreme Court must consider releasing opinions on all shadow docket cases, the greatest issue regarding the docket and emergency applications goes beyond the Court itself. The way the docket is portrayed and how the public has come to believe it works is extremely flawed. Media outlets are doing a disservice to the American people by portraying emergency application decisions from the Court as the final say which incites fear across the nation. Consider this article from USA Today. The article does highlight that the Supreme Court’s Sept. 8 decision regarding Noem v. Perdomo “temporarily overturned decisions from the lower courts,” a vital note to make to ensure that readers understand that this decision is not final; however, this point is not made until the second paragraph, after the article’s author has already chosen to use absolute phrases like “gives permission.” In saying “gives permission,” rather than another phrase like “temporarily allows,” the reader comes to the conclusion that this decision is final, creating a skewed outlook for the rest of the article, even though it is later clarified that the court’s decision is temporary. Additionally, the media is trying to spin the emergency docket as evidence that the Supreme Court is simply President Trump’s pawn; however, there is little reason to actually come to this conclusion. In this article, again on the Noem v. Perdomo decision, the New York Times claims that “the ruling appeared to signal substantial deference to the executive branch under President Trump and the possibility that the court would ultimately side with him should it ultimately issue an opinion on the case.” There is a valid point made in this claim: the Court could potentially side with President Trump when asked to issue a final decision. But, there is also the chance the Court will not side with him. In President Trump’s first term, the Court actually opposed him in critical cases, including his attempt at using presidential immunity to prevent investigation into his financial records and his attempt to terminate Deferred Action for Childhood Arrivals (DACA), established in 2012 by President Obama. It seems illogical to fear that the Court will automatically side with the President when past decisions from the Court prove that as untrue. 

Ultimately, the shadow docket has been presented as a dangerous tool that enables the Supreme Court to rashly make decisions and President Trump to evade typical constitutional processes; however, this could not be further from the truth. In every shadow docket decision, there are certain conditions that must be met in order for the case to be approved. Although the absence of oral arguments and briefings seems concerning at first, it is important to recognize that it would be impossible for the Court to hear every case. The shadow docket must exist, but it must be revised. Justices need to release an opinion with each provisional decision they make, even though they are temporary, as this will align lower courts and foster greater trust between the public and the Court. Media outlets also need to make a more concerted effort to be honest about the impermanence of these decisions and to highlight that even though the case is on the shadow docket, there are certain conditions that need to be met and reasonings behind every single decision. Everyone should question why there are no opinions behind the decisions and what drew the Court to approve the application; but, no citizen should have to question if their government is actually following a procedure and has their best interest in mind. Everyone needs to recognize that, while one may disagree with their decisions, the Supreme Court is following the law every time they decide on a shadow docket case, no matter how the media portrays it.