The “shadow docket” refers to the way the Supreme Court decides whether to issue emergency rulings, often determining whether a lower court’s decision can take effect while it’s being appealed to a higher court. The practice has become far more common in recent years, and a recent New York Times story has shed new light on how its rise began.
Why it matters: While the Supreme Court is intended to be the least politicized branch of government, it has faced increasing accusations over recent years that it has lost its independence. The litany of shadow docket decisions in response to appeals from the Trump administration and others are a big reason why so many have sought to discredit the Court over that time.
The backstory: How the shadow docket works
Maybe I’m just paying more attention to it now, but it feels like the Supreme Court has been in the news a lot more often over the last few years. Court insiders like Sarah Isgur have called it the “last branch standing,” but its members have also come under fire for appearing to be overly partisan and—especially over the last year—beholden to President Trump. That description is flawed for a number of reasons, but a recent story from the New York Times shed light on one of the Court’s most pressing problems: the shadow docket.
The “shadow docket” refers to the process by which the Supreme Court determines if a lower court’s ruling can go into effect while it’s being appealed to a higher court. At times, it can result in the decision being thrown out entirely, but more often it just means the status quo continues until the matter is argued at the highest level and the nine justices give their verdict.
While the shadow docket—or emergency docket, as it’s also known—started back in 1953 when Justice William O. Douglas temporarily stayed the execution of Ethel and Julius Rosenberg, who were convicted of selling secrets to the Soviet Union, it remained a rarely used power until about ten years ago.
That’s when Chief Justice John Roberts encouraged the rest of the Court to issue an emergency ruling to stop then-President Obama’s Clean Power Plan, an environmental policy that would have required power plants to begin shifting from coal to natural gas and renewable energy by 2030. The New York Times story is built around a series of leaked memos detailing the Justices’ back-and-forth over the issue.
And while they eventually ruled 5–4 to stop the plan from going into effect, the process they took to get there reshaped aspects of how the Court works today.
What constitutes “irreparable harm?”
The reporters who broke the story have since released the memos online, which is helpful because the way the original article is framed adds a level of tension that feels more baked into their reporting than evident in the memos themselves. That said, it’s clear from the start that a large part of the motivation for keeping the policy from going into effect was a response to a prior incident in which the Court did not grant a stay. Despite eventually ruling the law unconstitutional, it still had the effect the Obama administration desired.
As Roberts describes:
On June 29, 2015, we ruled the EPA’s Mercury and Air Toxics Standards violated the Clean Air Act. . . One day later, the EPA announced that it was “confident [it was] still on track to reduce” the targeted pollutants in part because “the majority of power plants are already in compliance or well on their way to compliance” . . . In other words, the absence of a stay allowed the agency to effectively implement an important program we held to be contrary to law.
A key component of the Court’s decision when considering any stay of a pending case is whether “irreparable harm” will be done in the time it takes for the Justices to render their verdict. What makes this standard difficult to apply, though, is that it’s asking the Court’s members to issue a binding order ultimately based on hypotheticals instead of facts.
And once it became known that the Supreme Court was open to the idea, the requests became far more frequent. The pace has seen its greatest period of growth in recent years, though.
In 2024, for example, the Court decided 44 cases on the shadow docket. Last year, that number had grown to 113 by July. And, in what is perhaps the most important aspect of this story for the Court’s reputation, many of them are coming from the Trump administration.
In the first year of President Trump’s second term, his administration filed thirty requests for emergency relief. By contrast, there were nineteen such applications during all four years of Biden’s presidency and only eight across all sixteen years that Presidents Bush and Obama were in office.
Part of that number is due to the proliferation of executive orders he issued during the first months of his term. And it doesn’t help the Court’s optics that they sided with the president in the majority of those cases. That said, the numbers can be misleading, since the administration only appeals cases it believes it has a strong chance of winning.
More than 150 orders have gone against the president since his term began, and fewer than a quarter were challenged. So, while the Court has ruled in the president’s favor more often than not, the larger issue is how they’ve approached their caseload and the degree to which the shadow docket has become a core part of how they do business.
When the Court “stops being a court of law”
You see, when the Supreme Court hears a case and renders its verdict, it typically publishes a lengthy explanation of how it reached its decision. In such instances, it establishes a precedent that’s easier for lower courts to follow and apply in the future.
With the shadow docket, however, there’s often little or no legal reasoning given. For example, in a recent emergency case in Los Angeles revolving around immigration—a subject in desperate need of greater clarity—the court issued a one-paragraph opinion without any legal reasoning. While Justice Kavanaugh’s concurrence went into more detail, the official court document did not.
If these opinions bore no weight outside of the individual case, the lack of reasoning could be understandable. However, as Yale Law School professor Jed Rubenfeld notes, “the justices have made clear that they view their emergency orders as binding precedent, and they expect lower courts to follow them. That’s impossible when the lower courts have no way of knowing what the Court’s order stands for.”
He goes on to argue that:
A Supreme Court decision without any legal reasoning is an act of power, not of law. Law is about reason, not merely saying which side wins. When the Court fails to explain its decisions, it doesn’t just suffer a loss of prestige or of perceived legitimacy. It stops being a court of law.
For a body of government that often functions as a last line of defense against the avarice and idleness of the other two branches, that is not a line they can afford to cross.
Spiritual application: “The conscience of the state”
As Christians, we’re meant to serve a similar purpose in the culture. As Martin Luther King Jr. once stated:
The church must be reminded once again that [it] is not to be the master or the servant of the state, but the conscience of the state. It must be the guide and the critic of the state—never its tool.
While we don’t have the power and authority of the Supreme Court—nor should we—every Christian has been given the Holy Spirit to guide and empower us as we seek to be salt and light to this world (Matthew 5:13–16).
That is a heavy task, and one we cannot hope to accomplish on our own. Yet, it is also an enormous privilege, and the second we allow the weight of what’s required to force us onto any path other than the one God has laid before us, we run the very real risk of losing our saltiness (as Jesus put it).
In recent years, more has been asked of the Supreme Court than our nation has any right to expect. The volume of cases, as well as the political and social ramifications of their decisions, have consistently stretched their capacity. And, as a result, they’ve too often resorted to the simpler solution of the shadow docket.
I don’t know about you, but when I think about what is required for the church to continue acting as the conscience of our culture, it’s easy to feel similarly overwhelmed. When that happens, there can be a great temptation to compromise around the fringes in order to keep up the energy to stand strong on what can seem like the more important issues.
And what that looks like, on a practical level, can be different for each of us.
For some, it might look like downplaying the importance of a Christ-like character in order to stand up for the right to life for unborn children. For others, it could be prioritizing immigrants in need while the poor around you are ignored. Or maybe it’s something as simple as unwinding at the end of a hard day with a show you probably shouldn’t be watching because you just need a break.
All of us are tempted to compromise in some area of our lives, which is why we can’t fulfill our calling as Christians without the help of the Holy Spirit. So, take some time today to ask the Lord to help you identify where you’re most tempted to make that mistake.
Knowing where you’re most prone to stumble is a huge help in staying on your feet as you walk with the Lord.
How steady is your walk today?
News worth knowing
- Foreign adversaries suspected in the deaths and disappearances of prominent American scientists
At least eleven US experts in space, defense, and nuclear technology have either died or disappeared under suspicious circumstances since 2023, including several so far this year. Both the Trump administration and the FBI are looking into the matter, but speculation has already run rampant about how they could be connected.
Why it matters
Rep. Eric Burlison, who sits on the House Oversight Committee, said Monday night that he would “not be surprised if our adversaries—China, Russia, Iran, or another adversary—saw an opportunity to take out some of our nation’s top scientists.” While authorities have not confirmed an official link between the cases, each of the victims had “the highest security levels one could possibly imagine.”
What to watch
President Trump stated that he hopes to have more information on the matter in the next week, but it’s unclear what the deaths and disappearances could mean if foreign involvement is found.
The Hill has more on the story
- The ceasefire with Iran is set to expire tonight
The ceasefire between the United States and Iran is set to expire at 8:00 EST tonight. Both sides have accused the other of violating the original ceasefire since it began. There is little expectation that a peace deal—or even just an extension of the current arrangement—will be reached before then.
Why it matters
One of the most difficult aspects of negotiating an end to the war is that Iran has no real government with which to negotiate. So many of their leaders have died since the fighting started that what remains is both more fractured and more radical than the previous iteration of their regime. So, while Vice President JD Vance and others can continue seeking a deal for peace, it’s difficult to trust that any such agreement would hold up for long.
What to watch
If the ceasefire ends tonight, will bombs start dropping once again? To what extent has Iran been able to rebuild its military capabilities over the last two weeks? And will we get any indication that the end of the war could be on the horizon?
The Tangle has more on the story
- The NFL draft starts on Thursday
Football’s season for unwarranted hope officially kicks off on Thursday with the first round of the NFL draft. Overall, this is not considered a very good draft in terms of elite, surefire Pro Bowl-caliber players. However, it is deep, and that depth brings a level of unpredictability that doesn’t start until Friday’s second round most years
Why it matters
While not every team will have a pick in round one, the draft generally gives fanbases a chance to hope that at least a few of the players chosen will play key roles in getting their team to the promised land (or maybe just the playoffs?).
What to watch
The Las Vegas Raiders (still sounds weird) will select first and are universally expected to choose Indiana QB, Fernando Mendoza. After that, though, things could get interesting. How will your favorite team look by the end of the weekend? What will the final price be when the Cowboys trade into the top 10 for Sonny Styles? And when will his jersey go on sale?
God is good
Pakistan is a hard place to be a Christian, but the prospects were looking particularly grim for more than 25,000 believers who faced eviction from their informal settlements in the nation’s capital of Islamabad. However, they got good news recently when the Federal Constitutional Court (FCC) ruled that they could stay—at least for now—while ordering authorities to finalize regulations that would legalize their communities there.
Kingdom impact
The Christian community in Islamabad is one of the nation’s most economically marginalized minorities. However, they’ve built strong communities among their fellow believers, and rulings like this can serve as a reminder that God is still at work among them.
Prayer point
Pakistan’s Supreme Court issued a similar ruling in 2016, but it was never implemented. Will you pray for continued favor with government leaders and that the Christians there will be able to keep their homes? And will you pray that their communities will serve as a light for the gospel in Pakistan?
Christian Daily has more on the story
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