The Supreme Court’s “Shadow Docket” Is Testing the Rule of Law

Last summer a federal judge halted ICE raids in Los Angeles, finding that the U.S. had been detaining citizens and non-citizens alike based on race or ethnicity in violation of the U.S. Constitution. In a 52-page ruling, he cited “a mountain of evidence” from both sides about the arrests and found the government version at odds with recorded facts. It enjoined government action based on a four-point test:

• Likelihood of success on the merits
• irreparable harms absent relief
• balance of equities
• public interest

The government had violated constitutional search-and-seizure, the U.S. District judge ruled, the basis for its findings on each factor. The government appealed.

At the Court of Appeals, the judges read briefs, heard argument and agreed with the decision to temporarily block arrests. The government appealed again. 

At the next stop, the U.S. Supreme Court demanded only cursory briefing and scheduled no oral argument. Its rules allow it to grant relief on a showing that there was

• A “reasonable probability” that the Court will grant certiorari
• A “fair prospect” that the applicant will prevail on the merits
• A “likelihood of irreparable harm that is both great and certain” (which is more demanding than the standard below)

It took up the administration’s “emergency” appeal in late July and in September struck down the order. The U.S. Supreme Court did not say why it found against the factual findings to the contrary of the two federal courts below.

The case out of Los Angeles had become one of some 20 cases that slipped onto the high court’s so-called “shadow docket.” They are decided quickly, without thorough review and without explanation. They are decided in shadows.

Since its 1803 Marbury v. Madison decision outlining the high court’s job, the Supreme Court has owed its authority to public confidence that its decisions arise from law and precedent, not politics or loyalties. This is what brings compliance, as the Court has no military or financial power to coerce obedience. But confidence depends on visible processes—full briefing, oral argument, and reasoned opinions—through which the court shows how and why it rules. The Court’s growing reliance on the shadow docket, while not illegal, threatens that confidence and, with it, the Rule of Law.

The shadow docket is not new. It allows the court to respond quickly to genuine emergencies, whether a looming execution or a national crisis. What has changed is the frequency and scope of its use. According to the Brennan Center for Constitutional Law, the Court issued about twenty shadow‑docket decisions in the first year of the current administration, far more than the handful seen annually in prior administrations. These rulings have been used to shift power toward the executive, authorize new uses of the National Guard, and alter immigration enforcement. They often decide matters of great national consequence with minimal briefing, no oral argument, and little explanation. The Court in these rulings has acted lawfully, but not transparently. Without transparency, the Rule of Law erodes.

Justice Elena Kagan has warned that when they do not explain themselves, courts invite confusion, cynicism, and doubt about whether politics rather than law drives results. “Some situations simply cry out for an explanation,” Justice Kagan has observed. The shadow docket too often provides none.

Sometimes only a sentence, these orders from the shadow docket are often unsigned and terse, offering no reasoning for lower courts or the public to follow. In regular cases, written opinions impose discipline: they force justices to confront doctrine, respond to counterarguments, and make deviations from precedent transparent. Justice Kagan emphasizes that full briefing, oral argument, and deliberation are not luxuries; they reduce error. Briefing reveals hidden consequences, arguments expose weak theories, and deliberation sharpens reasoning.

The consequences of rulings from the shadow docket are real. Emergency rulings have led to mass firings of federal employees, halted scientific research, changed immigration enforcement, and affected voting access and civil rights. Though nominally temporary, such orders can shape policy for months or years. Power exercised without explanation becomes power without accountability.

Perhaps most troubling is how routine the shadow docket has become. Data shows a surge in emergency requests, largely from the federal government during periods of aggressive executive action. The Court has granted most of them, allowing policies to operate despite lower‑court findings of likely illegality. Many of these “emergencies” are foreseeable litigation outcomes, not crises. Treating ordinary disputes as emergencies normalizes shortcut justice and erodes judicial neutrality.

When emergency orders shift power from Congress to the President or permit actions that established precedent forbids, the harm is twofold: to those affected and to the Court’s credibility as a neutral arbiter. The Constitution’s separation of powers depends on courts explaining why they allow one branch to prevail over another.

Criticism of the shadow docket is not an attack on the Court’s legitimacy, but a plea to preserve it. Justice Kagan’s dissents reflect loyalty to the institution. She accepts that emergencies occur but insists that speed not replace explanation, and convenience not replace care. While the majority’s view that emergency orders are temporary and prevent irreparable harm deserves respect, it does not answer why so many weighty disputes now qualify as emergencies, or why checks on executive power established after Watergate should be quietly undone.

When courts explain themselves, they affirm that rules govern their decision. They prevent serious misunderstandings by government actors, like ICE agents who might misuse ethnicity as a basis for sweeping detentions in Minnesota. When explanations vanish, skepticism fills the void. A Court that resolves major cases in the dark risks appearing as an adjunct to politics. Transparency sustains legitimacy and without it the opposite.

The solution is not to abolish the shadow docket, but to discipline it. Reserve it for true emergencies, provide brief but clear explanations, and avoid using temporary orders to decide substantive questions. Justice Kagan’s warnings chart a path toward institutional self‑preservation. By recommitting to transparency and reasoned justification, the Court can reaffirm the principle that has sustained it for more than two centuries: justice must not only be done but be seen to be done.