Shadow docket

The shadow docket is a body of Supreme Court rulings in the form of orders or decisions by a single justice of the Court or by the Court as a whole that are not preceded by oral arguments and not affirmed or dissented from in standard written opinions. Also called the nonmerits or motions docket, the shadow docket includes routine procedural orders as well as substantive decisions issued promptly in response to emergency requests. Rulings of the latter type are often referred to as the “emergency docket.” The term shadow docket was coined in 2015 by the American legal scholar William Baude to describe “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity” and “lack the transparency that we have come to appreciate in its merits cases.”

Most rulings in the shadow docket concern routine procedural matters, such as scheduling oral arguments, setting deadlines for the submission of briefs, and granting or denying a writ of certiorari (a petition for review of a lower-court ruling). Throughout the Supreme Court’s modern history, the shadow docket has also included a relatively small number of rulings issued in response to emergency applications from parties seeking immediate intervention in cases heard or yet to be heard in lower courts. In such rulings, most of which are issued to preserve the status quo, the Court may stay a lower court’s injunction pending its own decision, or it may stay a lower court’s decision pending an appeal to a higher court. It may also lift a higher court’s stay of a lower court’s injunction or decision. Shadow docket rulings are generally unsigned and are not accompanied by an explanation of the legal reasoning involved, much less a full opinion justifying the decision.

Some shadow docket rulings have been accompanied by one or more statements by justices who agree or disagree with them, but in all other instances there is no official indication of how many or which justices agreed or disagreed or why they did so.

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Substantive shadow docket cases have long included emergency requests for a stay of execution by prisoners on death row, often because prisoners’ appeals of death sentences in lower courts gain new urgency once an execution is officially scheduled or because some challenges to death sentences cannot be lodged until an execution date is set. Another contrast with cases on the merits docket is that shadow docket rulings tend to be issued unexpectedly and in some instances at odd times, such as late in the evening or very early in the morning, even when the case in question does not demand an immediate decision (as it might in a last-minute appeal of a death sentence).

Increase in substantive shadow docket rulings

During Pres. Donald Trump’s first and second terms (2017–21; 2025– ), the frequency with which the Supreme Court issued shadow docket rulings greatly increased, largely because the Department of Justice (DOJ) often requested emergency relief from the Court in the form of a stay of a lower-court’s injunction or decision. During Trump’s first term, the DOJ filed 41 emergency applications, as compared to a combined total of eight applications during the preceding presidencies of Barack Obama (2009–17) and George W. Bush (2001–09). During the first 20 weeks of his second term, Trump’s DOJ filed 19 emergency requests, the same number filed during the entire term of his predecessor, Pres. Joe Biden (2021–25).

A related factor contributing to the rise in shadow docket rulings, according to some observers, was an increased tendency of lower courts to issue nationwide injunctions, which some justices on the Court tended to view as excessively broad. (Indeed, in response to an emergency application from Trump in 2025, the Court issued a regular merits-docket decision holding that “universal injunctions likely exceed the equitable authority that Congress has granted to federal courts.”) Other observers contend that shadow docket rulings became more common because the Court itself had effectively lowered the standards it used to determine whether emergency relief was justified, now viewing any injunction of an executive branch action as an example of the prima facie “irreparable harm” that traditionally counts in favor of granting injunctive relief. A related contention was that some of the Court’s shadow docket rulings were based solely on what the Court determined to be the merits of the case in question.

Shadow docket rulings during the Trump and Biden administrations

Many of the shadow docket rulings issued during the Trump and Biden administrations were controversial because they effectively resolved some cases, or rendered them moot, by preventing lower courts from dealing with emergency problems in a manner appropriate to the limited time available. In 2020, for example, the Supreme Court issued a stay of an injunction issued by a federal district court in Alabama; the stay effectively prevented counties in the state from implementing curbside voting for disabled persons during the COVID-19 pandemic. In the same year, the Court stayed an injunction that had prevented the United States Census Bureau from reducing an extended time frame for census data collection in order to compensate for pandemic-related difficulties. Although the Court’s stay was technically temporary, pending disposition of the case by the United States Court of Appeals for the Ninth Circuit (which had declined to stay the district court’s injunction), it enabled the Census Bureau to permanently halt its data collection only two days later.

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Other shadow docket rulings issued during Trump’s first term greatly narrowed and later stayed altogether multiple lower-court injunctions against Trump’s Muslim travel bans. The shadow docket also enabled Trump to continue using federal funds to construct the southern “border wall” he promised during his 2016 campaign; to reinstate his ban on openly transgender persons in the U.S. military; and, in the last year of his first term, to proceed with the expedited execution of several federal prisoners, more than three times the number executed in the previous six decades.

During Biden’s presidency, many of the Court’s shadow docket rulings tended to side with lower courts and governments in Republican states. For example, in a one-paragraph ruling in response to Biden’s emergency application in 2021, the Court refused to enjoin enforcement of a Texas state law banning abortions after six weeks of pregnancy, despite its plainly unconstitutional status under Roe v. Wade (1973). (Roe v. Wade was later overturned in a regular merits-docket case, Dobbs v. Jackson Women’s Health Organization [2022].) Other rulings prevented the Biden administration from rescinding Trump’s earlier “remain in Mexico” policy, which required immigrants seeking asylum in the United States to remain in Mexico while waiting for an immigration court hearing; denied the administration’s request to maintain a policy prohibiting residential evictions in areas with widespread COVID-19 infections; and permitted fossil fuel companies to continue projects resulting in water pollution.

Trump’s second term, like his first, began with several emergency applications, the majority of which proved favorable to his administration. In notable shadow docket rulings issued in 2025–26, the Court

• stayed a lower court’s order preventing the state of Texas from using a politically gerrymandered congressional map in the 2026 midterm elections;
• stayed a lower court’s order requiring the Trump administration to rehire employees fired from the Department of Education;
• stayed a lower court’s order temporarily prohibiting federal officers from locating and detaining suspected undocumented immigrants on the basis of “apparent race or ethnicity,” among other criteria;
• upheld a lower-court injunction that had prevented South Carolina public schools from banning transgender boys from designated boys’ bathrooms;
• stayed a lower court’s order preventing the president from terminating without cause a member of the Federal Trade Commission;
• upheld a lower court ruling permitting California to use its politically gerrymandered congressional map in the 2026 midterm elections; and
• stayed a lower court’s injunction of Trump’s executive order effectively limiting the availability and postal delivery of mail-in ballots in every state.

For additional examples, see Major shadow docket rulings of the U.S. Supreme Court during the second Trump administration (2025– ).

General problems created by the shadow docket

The increased number and variety of substantive shadow docket rulings by the Supreme Court has prompted concern from legislators, judges, legal scholars, and journalists, as well as from some members of the Court itself. These and other critics have argued that the extended shadow docket has created a number of significant problems, including: (1) confusion among lower courts and legislators as to the legal reasoning underlying the Court’s positions on important constitutional questions; (2) reduced public access to and awareness of important Court decisions, due to the unusual timing of several substantive shadow docket orders; and (3) damage to the Court’s legitimacy in the eyes of the public, given the fact that anonymous and unexplained shadow docket orders are often perceived as politically motivated, especially if they effectively advance or endorse one side of a nationwide political controversy.