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{{Short description|U.S. Supreme Court emergency procedure}}
{{good article}}
{{Use mdy dates|date=September 2021}}
The '''shadow docket''' (or '''non-merits docket''')<ref name="CRS">{{cite report |author=Joanna R. Lampe |date=August 27, 2021 |title=The "Shadow Docket": The Supreme Court’s Non-Merits Orders |publisher=[[Congressional Research Service]] |page= |url=https://crsreports.congress.gov/product/pdf/LSB/LSB10637 |access-date=May 4, 2023 }}</ref>{{efn|Additional names include the "orders docket", "emergency docket", "non-merits orders", or "emergency orders", as relevant. Definitions of these terms may vary, such as about whether they include typical petitions for certiorari and non-contentious requests like extensions of time for filing.}} refers to motions and orders in the [[Supreme Court of the United States]] in cases which have not yet reached [[Judgment (law)|final judgment]],{{efn|Or an [[interlocutory]] order that is [[Interlocutory appeal|appealable]].}} decision on [[appeal]], and [[oral argument]]. This especially refers to [[Stay of execution|stays]] and [[injunction]]s (preliminary relief), but also includes [[Summary (law)|summary]] decisions and [[Grant, vacate, remand order|grant, vacate, remand (GVR) orders]]. The phrase "shadow docket" was first used in this context in 2015 by [[University of Chicago Law School|University of Chicago Law]] professor [[William Baude]].

The shadow docket is a break from [[United States Supreme Court procedure|ordinary procedure]]. Such cases receive very limited briefings and are typically decided a week or less after an application is filed. The process generally results in short, unsigned rulings. On the other hand, merits cases take months, include oral argument, and result in lengthy opinions detailing the reasoning of the majority and concurring and dissenting justices, if any.

It is used when the Court believes an applicant will suffer "irreparable harm" if its request is not immediately granted. Historically, the shadow docket was rarely used for rulings of serious legal or political significance. However, since 2017, it has been increasingly used for consequential rulings, especially for requests by the [[United States Department of Justice|Department of Justice]] for emergency [[Stay of proceedings|stays]] of lower-court rulings. The practice has been criticized for various reasons, including for bias, lack of transparency, and lack of accountability.

==Terminology==
The term "shadow docket" was coined in 2015 by [[William Baude]],<ref name=enigmatic>{{cite news |last1=Millhiser |first1=Ian |title=The Supreme Court's enigmatic "shadow docket," explained |url=https://www.vox.com/2020/8/11/21356913/supreme-court-shadow-docket-jail-asylum-covid-immigrants-sonia-sotomayor-barnes-ahlman |access-date=February 5, 2021 |work=Vox |date=August 11, 2020 |archive-date=February 12, 2021 |archive-url=https://web.archive.org/web/20210212210457/https://www.vox.com/2020/8/11/21356913/supreme-court-shadow-docket-jail-asylum-covid-immigrants-sonia-sotomayor-barnes-ahlman |url-status=live }}</ref> who wrote:

{{Blockquote
|text=Outside of the merits cases, the Court issued a number of noteworthy rulings which merit more scrutiny than they have gotten. In important cases, it granted stays and injunctions that were both debatable and mysterious. The Court has not explained their legal basis and it is not even clear to what extent individual Justices agree with those decisions.{{nbsp}}... As the orders list comes to new prominence, understanding the Court requires us to understand its non-merits work – its shadow docket.<ref name="Baude">{{cite journal |last1=Baude |first1=William |author1-link=William Baude |title=Foreword: The Supreme Court's Shadow Docket |journal=[[New York University Journal of Law & Liberty]] |date=January 2015 |volume=9 |issue=1 |url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1961&context=public_law_and_legal_theory |publisher=[[New York University School of Law]] |access-date=February 6, 2021 |archive-date=February 10, 2021 |archive-url=https://web.archive.org/web/20210210205511/https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1961&context=public_law_and_legal_theory |url-status=live }}</ref>{{rp|3–4, 5}}
|title="Foreword: The Supreme Court's Shadow Docket"
|source=''[[New York University Journal of Law & Liberty]]'' (January 2015)
}}

The term has been used by some justices themselves, with Justice [[Elena Kagan]] calling the Court's "shadow-docket decision-making" "every day becom[ing] more unreasoned, inconsistent, and impossible to defend" in a dissent to a denial of an application for injunctive relief in the case ''[[Whole Woman's Health v. Jackson]]'' (2021).<ref>{{Cite news |last=Vladeck |first=Steve |title=Perspective {{!}} The Supreme Court doesn’t just abuse its shadow docket. It does so inconsistently. |language=en-US |work=Washington Post |url=https://www.washingtonpost.com/outlook/2021/09/03/shadow-docket-elena-kagan-abortion/ |access-date=2023-03-06 |issn=0190-8286}}</ref> The phrase itself has been criticized by Justice [[Samuel Alito]], who called it "sinister" in a university speech and saying it was "used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways",<ref name="intimidate">{{cite news |last1=Barnes |first1=Robert |last2=Berardino |first2=Mike |title=Alito defends letting Texas abortion law take effect, says Supreme Court critics want to intimidate justices |url=https://www.washingtonpost.com/politics/courts_law/alito-texas-abortion-law-shadow-docket/2021/09/30/e74da5f6-2219-11ec-8200-5e3fd4c49f5e_story.html |access-date=October 29, 2021 |newspaper=[[The Washington Post]] |date=September 30, 2021 |archive-date=October 1, 2021 |archive-url=https://web.archive.org/web/20211001171222/https://www.washingtonpost.com/politics/courts_law/alito-texas-abortion-law-shadow-docket/2021/09/30/e74da5f6-2219-11ec-8200-5e3fd4c49f5e_story.html |url-status=live }}</ref> and by senators, with [[Ted Cruz]], a former [[solicitor general of Texas]], saying: "Shadow docket, that is ominous. Shadows are really bad, like really, really bad".<ref name=senatorsspar/>

== Procedure ==
In the Supreme Court's ordinary proceedings, cases are filed to the merits docket.<ref name="radar"/> Cases are accepted if four justices decide to [[Certiorari#United States|grant ''certiorari'']] (the so-called [[rule of four]]), with the overwhelming majority being denied (around 80 out of 7,000–8,000 petitions for ''certiorari'' are granted each term<ref name=reporter/>{{rp|15–16}}). Accepted cases then feature full briefings (including from ''[[amici curiae]]'', if any) and oral arguments,<ref name="radar" /> with cases generally lasting months.<ref>{{cite web |title=Supreme Court Procedure |url=https://www.scotusblog.com/supreme-court-procedure/ |website=[[Scotusblog]] |access-date=September 24, 2021 |archive-date=September 24, 2021 |archive-url=https://web.archive.org/web/20210924121954/https://www.scotusblog.com/supreme-court-procedure/ |url-status=live }}</ref> Finally, the Court issues a lengthy, signed majority opinion, in which the majority extensively explains its reasoning for the ruling.<ref name="radar" />

For the shadow docket, following an application to the relevant [[circuit justice]], they will decide whether to independently make a ruling or refer it to their colleagues.<ref name="reporter"/>{{rp|3, 4–5}} Applications are dealt with on an accelerated time frame, with decisions coming in a week or less.<ref name=nohearings/> Should a justice proceed alone, the parties in a case may request that other justices overrule them instead.<ref name="reporter"/>{{rp|3, 4–5}} According to the Court, there are four criteria for stays to be granted:

{{Blockquote
|text=<nowiki />
# that there is a "reasonable probability" that four Justices will grant ''certiorari'', or agree to review the merits of the case;
# that there is a "fair prospect" that a majority of the Court will conclude upon review that the decision below on the merits was erroneous;
# that irreparable harm will result from the denial of the stay;
# finally, in a close case, the Circuit Justice may find it appropriate to balance the equities, by exploring the relative harms to the applicant and respondent, as well as the interests of the public at large.<ref name="reporter">{{cite web |title=A Reporter's Guide to Applications Pending Before the Supreme Court of the United States |url=https://www.supremecourt.gov/publicinfo/reportersguide.pdf |website=Public Information Office |publisher=[[Supreme Court of the United States]] |access-date=February 6, 2021 |archive-date=November 23, 2020 |archive-url=https://web.archive.org/web/20201123195512/https://www.supremecourt.gov/publicinfo/reportersguide.pdf |url-status=live }}</ref>{{rp|2–3}}
}}

Shadow docket orders are usually unsigned and unexplained. Court observers may attempt to infer how the justices split based on signed concurrences and dissents, rather than the majority opinion.<ref name=dottedlines/> In the Court's August 2020{{snd}}July 2021 term, the exact vote count was known in 14 cases out of the 73 emergency cases referred to the whole court (there were 150 such cases in total). There were 56 merits docket rulings during that period.<ref>{{cite news |last1=Hurley |first1=Lawrence |last2=Chung |first2=Andrew |title=Analysis: U.S. Supreme Court's 'shadow docket' favored religion and Trump |url=https://www.reuters.com/legal/government/us-supreme-courts-shadow-docket-favored-religion-trump-2021-07-28/ |access-date=December 25, 2021 |work=[[Reuters]] |date=July 28, 2021 |archive-date=December 25, 2021 |archive-url=https://web.archive.org/web/20211225023306/https://www.reuters.com/legal/government/us-supreme-courts-shadow-docket-favored-religion-trump-2021-07-28/ |url-status=live }}</ref> Inferences for judicial splits are inexact unless there are three public dissents for ''certiorari'' denials or four for all other orders.<ref name="radar">{{cite news|last1=Vladeck|first1=Steve|author-link=Steve Vladeck|date=August 11, 2020|title=The Supreme Court's Most Partisan Decisions Are Flying Under the Radar|work=Slate|url=https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html|url-status=live|access-date=February 5, 2021|archive-url=https://web.archive.org/web/20210206183756/https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html|archive-date=February 6, 2021}}</ref>

== Authority to issue stays and injunctions ==

Congress has specifically authorized each justice to issue [[stay of execution|stays]] pending [[certiorari]] under {{USCSub|28|2101|f}}. Under the Supreme Court's [https://www.law.cornell.edu/rules/supct/rule_22 Rules 22] and [https://www.law.cornell.edu/rules/supct/rule_23 23], requests for stay are directed to the assigned [[Supreme Court of the United States#Justices as circuit justices|circuit justice]], who can either grant, deny, or refer the request to the full court.

Before 1990, the rules of the Supreme Court also stated that "a writ of injunction may be granted by any Justice in a case where it might be granted by the Court."<ref>Supreme Court Rule 44 (1980 revised) (titled "Stays"), published at 445 U.S. 985, [https://babel.hathitrust.org/cgi/pt?id=osu.32435028062743&view=page&seq=940 1038]. Also available at the Supreme Court's website at [https://www.supremecourt.gov/pdfs/rules/rules_1980r.pdf Historical Rules of the Supreme Court, 1980 revised].</ref> However, this part of the rule (and all other specific mention of injunctions) was removed in the Supreme Court's rules revision of December 1989.<ref>Supreme Court Rule 23 (1989) (titled "Stays"; moved from Rule 44), published at 493 U.S. 1097, [https://babel.hathitrust.org/cgi/pt?id=mdp.39015077149535&view=page&seq=1081&size=125 1125]. Also available at the Supreme Court's website at [https://www.supremecourt.gov/pdfs/rules/rules_1989.pdf Historical Rules of the Supreme Court, 1989]. And note that "Injunction, writ of" was removed from the index. Compare 445 U.S. 1064 with 493 U.S. 1172.</ref><ref>Daniel Gonen, [https://ssrn.com/abstract=1282265 "Judging in Chambers: The Powers of a Single Justice of the Supreme Court"], 76 U. Cinn. L. Rev. 1159, 1168–70 (2008).</ref> Nevertheless, requests for an injunction under the [[All Writs Act]] are sometimes directed to the circuit justice.

One influential [[in-chambers opinion]] denying an injunction, ''[[Communist Party of Indiana v. Whitcomb]]''<ref>{{Ussc|409|1235}}</ref> (1972) (Rehnquist, in chambers) noted that

{{Blockquote|While a Circuit Justice of this Court apparently has authority under Supreme Court Rule 51{{efn|That was the rule titled "Stays", which was moved to Rule 23 effective 1990. However, that revision also dropped all mention of injunctions.}} to grant [...] a mandatory injunction, usage and practice suggest that this extraordinary remedy be employed only in the most unusual case. In order that it be available, the applicants' right to relief must be indisputably clear.}}

[[In-chambers opinion#List of in-chambers opinions since 1990|Subsequent in-chambers opinions]] have cited this "indisputably clear" standard, including ''Lux v. Rodrigues'' (2010) (Roberts, in chambers) and ''Hobby Lobby v. Sebelius'' (2012) (Sotomayor, in chambers). 

An order of the full court in ''[[Respect Maine PAC v. McKee]]'' (2010) denied an injunction, quoting ''[[Ohio Citizens for Responsible Energy, Inc. v. NRC]]'' (1986) (Scalia, in chambers) that a request for an injunction "demands a significantly higher justification" than a request for a stay, because it "does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts."<ref>{{USSC|562|996|link=https://casetext.com/case/respect-maine-pac-v-mckee}}</ref>

In ''[[Wheaton College v. Burwell]]'' (2014), the full court granted an injunction over a dissent authored by Justice [[Sonia Sotomayor|Sotomayor]], who argued that the "indisputably clear" standard should apply.<ref name="Baude"/>{{Rp|15}} Chief Justice [[John Roberts|Roberts]], in a lone concurrence in ''[[South Bay United Pentecostal Church v. Newsom]]'' (2020) ("''South Bay I''"), also applied the "indisputably clear" standard to deny a request for an injunction even when it was referred to the full court. But in ''[[Roman Catholic Diocese of Brooklyn v. Cuomo]]'' (2020), a majority of the court granted an injunction under the lower "likelihood of success" standard of the ''[[Winter v. Natural Resources Defense Council|Winter]]'' factors, the ordinary test for a [[Injunction#Preliminary injunctions|preliminary injunction]].

== History ==
=== Historical use ===
[[File:NixononCambodia.jpg|thumb|Nixon announcing the U.S. invasion of Cambodia|alt=Richard Nixon pointing at a map of Cambodia]]

The shadow docket was used primarily for issuing routine orders, such as giving parties more time to file a brief or extending oral arguments.<ref>{{Cite web|last=Vladeck|first=Stephen I.|author-link=Steve Vladeck|date=February 18, 2021|title=Hearing Before the Subcommittee on Courts, Intellectual Property, and the Internet of the House Committee on the Judiciary: Testimony of Stephen I. Vladeck|url=https://www.justsecurity.org/wp-content/uploads/2021/02/Vladeck-Shadow-Docket-Testimony-02-18-2021.pdf|url-status=live|archive-url=https://web.archive.org/web/20210813171137/https://www.justsecurity.org/wp-content/uploads/2021/02/Vladeck-Shadow-Docket-Testimony-02-18-2021.pdf|archive-date=August 13, 2021|access-date=September 1, 2021}}</ref>{{rp|2}} However, on rare occasions, it was used for consequential rulings such as the 1953 [[Stay of proceedings|stay]] of the [[Julius and Ethel Rosenberg#Execution|executions of Julius and Ethel Rosenberg]] and the emergency [[injunction]] ordering a halt to the [[Presidency of Richard Nixon|Nixon administration]]'s [[Operation Freedom Deal|bombing of Cambodia]].<ref>{{cite web|last1=Vladeck|first1=Steve|author-link=Steve Vladeck|date=October 22, 2020|title=The solicitor general, the shadow docket and the Kennedy effect|url=https://www.scotusblog.com/2020/10/symposium-the-solicitor-general-the-shadow-docket-and-the-kennedy-effect/|url-status=live|archive-url=https://web.archive.org/web/20210412014836/https://www.scotusblog.com/2020/10/symposium-the-solicitor-general-the-shadow-docket-and-the-kennedy-effect/|archive-date=April 12, 2021|access-date=February 6, 2021|website=[[SCOTUSblog]]}}</ref><ref>{{Cite web|last=Neoborne|first=Burt|date=September 27, 2019|title=I Fought the Imperial Presidency, and the Imperial Presidency Won|url=https://www.aclu.org/issues/national-security/i-fought-imperial-presidency-and-imperial-presidency-won|url-status=live|website=[[American Civil Liberties Union]]|access-date=September 1, 2021|archive-date=September 1, 2021|archive-url=https://web.archive.org/web/20210901220545/https://www.aclu.org/issues/national-security/i-fought-imperial-presidency-and-imperial-presidency-won}}</ref>

A major reason why the Court has used the shadow docket has been to manage its caseload. In ''[[Maryland v. Baltimore Radio Show, Inc.]]'' (1950), Justice [[Felix Frankfurter]] explained for a unanimous court why the shadow docket was necessary,<ref name="dottedlines" /> stating: "If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive."<ref name="marylandbaltimore">{{cite web|last1=Frankfurter|first1=Felix|author-link=Felix Frankfurter|date=January 9, 1950|title=State of Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912|url=https://www.courtlistener.com/opinion/104765/state-of-maryland-v-baltimore-radio-show-inc/|url-status=live|archive-url=https://web.archive.org/web/20210902152416/https://www.courtlistener.com/opinion/104765/state-of-maryland-v-baltimore-radio-show-inc/|archive-date=September 2, 2021|access-date=February 6, 2021|website=Court Listener}}</ref>

=== Since 2017 ===
Use of the shadow docket for important rulings has increased precipitously since 2017.<ref name="nohearings">{{Cite news|date=August 28, 2021|title=Many of the Supreme Court's decisions are reached with no hearings or explanation|newspaper=[[The Economist]]|url=https://www.economist.com/united-states/2021/08/28/many-of-the-supreme-courts-decisions-are-reached-with-no-hearings-or-explanation|url-status=live|url-access=subscription|access-date=September 1, 2021|archive-url=https://web.archive.org/web/20210901212959/https://www.economist.com/united-states/2021/08/28/many-of-the-supreme-courts-decisions-are-reached-with-no-hearings-or-explanation|archive-date=September 1, 2021}}</ref><ref name="quietlydispatches">{{cite news|last1=Hurley|first1=Lawrence|last2=Chung|first2=Andrew|last3=Allen|first3=Jonathan|date=March 23, 2021|title=The 'shadow docket': How the U.S. Supreme Court quietly dispatches key rulings|work=[[Reuters]]|url=https://www.reuters.com/article/idUSKBN2BF14U|url-status=live|access-date=March 31, 2021|archive-url=https://web.archive.org/web/20210323202800/https://www.reuters.com/article/idUSKBN2BF14U|archive-date=March 23, 2021}}</ref> This coincided with the [[presidency of Donald Trump]], when the Department of Justice sought emergency relief (generally to stay lower court rulings against its executive actions<ref name="extraordinary" />) from the Supreme Court at a far higher rate than had previous administrations, filing 41 emergency applications over Trump's four years in office (by comparison, over the prior 16 years the [[Presidency of Barack Obama|Obama administration]] and the [[Presidency of George W. Bush|Bush administration]] together filed only eight emergency applications).<ref name="nohearings" />

Rulings made by way of the shadow docket during Trump's term included rulings over [[Trump travel ban|his travel ban]],{{Clarify|reason=Did they rule in favor or against?|date=March 2022}} the diversion of military funds to the construction of [[Trump wall|a border wall]] on the [[U.S.–Mexico border]], the [[Presidential Memorandum on Military Service by Transgender Individuals (2017)|prohibition of transgender people from openly serving in the United States military]], use of the [[Capital punishment in the United States|federal death penalty]],{{Clarify|reason=Did they rule in favor or against?|date=March 2022}} and restrictions on [[asylum seeker]]s from [[Central America]].<ref name="showitswork">{{Cite web|last=Vladeck|first=Stephen I.|author-link=Steve Vladeck|date=March 10, 2021|title=The Supreme Court Needs to Show Its Work|url=https://www.theatlantic.com/ideas/archive/2021/03/supreme-court-needs-show-its-work/618238/|url-status=live|archive-url=https://web.archive.org/web/20210828002203/https://www.theatlantic.com/ideas/archive/2021/03/supreme-court-needs-show-its-work/618238/|archive-date=August 28, 2021|access-date=September 1, 2021|website=[[The Atlantic]]}}</ref><ref name="nohearings" /> The Supreme Court granted 28 of the Trump administration's requests; in the 16 years prior, only four were granted.<ref name="quietlydispatches" />

Following Trump's departure from office, the Court has made rulings against the [[Presidency of Joe Biden|Biden administration]], putting an end to a federal eviction moratorium and nullifying the White House's attempt to end the [[Remain in Mexico]] policy. The latter was decided in an order two paragraphs long.<ref>{{cite news |last1=Hurley |first1=Lawrence |title=Analysis: Biden's Supreme Court losses prompt more 'shadow docket' scrutiny |url=https://www.reuters.com/legal/government/bidens-supreme-court-losses-prompt-more-shadow-docket-scrutiny-2021-08-27/ |access-date=December 25, 2021 |work=[[Reuters]] |date=August 28, 2021 |archive-date=December 25, 2021 |archive-url=https://web.archive.org/web/20211225031230/https://www.reuters.com/legal/government/bidens-supreme-court-losses-prompt-more-shadow-docket-scrutiny-2021-08-27/ |url-status=live }}</ref> In September 2021, the shadow docket gained more prominence after the Court declined to block the [[Texas Heartbeat Act]] from being enforced and decided some technical matters concerning how it could be challenged in ''[[Whole Woman's Health v. Jackson]]''.<ref name=senatorsspar/>

In 2021, both the [[United States House Committee on the Judiciary|House Judiciary Committee]] and its [[United States Senate Committee on the Judiciary|Senate counterpart]] held its first hearings on the practice in February and September respectively.<ref name=senatorsspar>{{cite news |last1=Erskine |first1=Ellena |title=Senators spar over shadow docket in wake of court's order allowing Texas abortion law to take effect |url=https://www.scotusblog.com/2021/09/senators-spar-over-shadow-docket-in-wake-of-courts-order-allowing-texas-abortion-law-to-take-effect/ |access-date=January 20, 2022 |work=[[SCOTUSblog]] |date=September 29, 2021 |archive-url=https://web.archive.org/web/20211227164240/https://www.scotusblog.com/2021/09/senators-spar-over-shadow-docket-in-wake-of-courts-order-allowing-texas-abortion-law-to-take-effect/ |archive-date=December 27, 2021}}</ref>

Coinciding with other attempts to reform the Supreme Court, Senate Democrats introduced legislation in 2024 aiming to require the Court to provide written explanations of its decision and disclose how the Justices voted.<ref>{{Cite web |last=Wheeler |first=Lydia |date=May 22, 2024 |title=Justices Forced to Explain Shadow Docket Rulings Under New Bill |url=https://news.bloomberglaw.com/us-law-week/bill-forcing-justices-to-explain-shadow-docket-rulings-unveiled |url-status=live |access-date=September 30, 2024 |website=Bloomberg Law}}</ref>

== Commentary <span class="anchor" id="Criticism"></span> ==
===Unreasonable judicial power===
Critics contend that the shadow docket gives the Supreme Court an unreasonable amount of power. Nicholas Stephanopoulos, a law professor at [[Harvard University]], has argued that the "idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about{{nbsp}}... If courts don't have to defend their decisions, then they're just acts of will, of power. They're not even pretending to be legal decisions."<ref name="reasons">{{cite news|last1=Liptak|first1=Adam|author-link=Adam Liptak|date=October 26, 2020|title=Missing From Supreme Court's Election Cases: Reasons for Its Rulings|work=[[The New York Times]]|url=https://www.nytimes.com/2020/10/26/us/supreme-court-election-cases.html|url-status=live|access-date=February 6, 2021|archive-url=https://web.archive.org/web/20210206124720/https://www.nytimes.com/2020/10/26/us/supreme-court-election-cases.html|archive-date=February 6, 2021}}</ref>

[[File:David D. Cole December 7, 2016 (cropped).jpg|thumb|Cole in 2016|alt=David Cole in a suit and tie]]
[[David D. Cole]], the national legal director of the [[American Civil Liberties Union]] and a professor at [[Georgetown University Law Center]], has likewise said that if the Court can "make significant decisions without giving any reasons, then there's really no limit to what they can do".<ref name=quietlydispatches/> [[Steve Vladeck]], the [[Charles Alan Wright]] chair of federal courts at [[University of Texas School of Law]], has lambasted the novel uses of the shadow docket, writing in the ''[[New York Times]]'':

{{Blockquote
|text=Until this term, it would have been unheard-of to articulate a new constitutional rule while issuing an emergency injunction to enforce it{{nbsp}}... A majority of the justices are increasingly using procedural tools meant to help them control their docket to make significant substantive changes in the law, in defiance not only of their own standards for such relief, but of fundamental principles of judicial decision making.<ref>{{Cite web|last=Vladeck|first=Stephen I.|date=April 15, 2021|title=The Supreme Court Is Making New Law in the Shadows|url=https://www.nytimes.com/2021/04/15/opinion/supreme-court-religion-orders.html|url-status=live|website=[[The New York Times]]|access-date=September 1, 2021|archive-date=August 31, 2021|archive-url=https://web.archive.org/web/20210831034727/https://www.nytimes.com/2021/04/15/opinion/supreme-court-religion-orders.html?searchResultPosition=1}}</ref>
}}

[[Solicitor General of Alabama]] [[Edmund LaCour]] has defended the use of the shadow docket, stating that due to "time-sensitive matters" it would be inappropriate to use the usual channels<ref name="reuterstarget"/> and its existence was important to keep the Court functioning properly;<ref name=senatorsspar/> former [[United States Senate Judiciary Committee|U.S. Senate Judiciary]] chair [[Chuck Grassley]] saying that the Court's decision in ''Whole Woman's Health v. Jackson'' was "something very ordinary".<ref name="reuterstarget">{{cite news |last1=Raymond |first1=Nate |title=Senate Democrats target Supreme Court 'shadow docket' after Texas abortion decision |url=https://www.reuters.com/legal/government/senate-democrats-target-supreme-court-shadow-docket-after-texas-abortion-2021-09-29/ |access-date=January 20, 2022 |work=[[Reuters]] |date=September 30, 2021 |archive-url=https://web.archive.org/web/20211021202008/https://www.reuters.com/legal/government/senate-democrats-target-supreme-court-shadow-docket-after-texas-abortion-2021-09-29/ |archive-date=October 21, 2021}}</ref>

===Transparency===
The shadow docket has been criticized for a lack of transparency.<ref>{{Cite news|last=Vladeck|first=Steve|author-link=Steve Vladeck|date=August 26, 2021|title=The Supreme Court's 'shadow docket' helped Trump 28 times. Biden is 0 for 1.|url=https://www.washingtonpost.com/outlook/2021/08/26/shadow-docket-supreme-court-biden-mexico/|url-status=live|archive-url=https://web.archive.org/web/20210829115343/https://www.washingtonpost.com/outlook/2021/08/26/shadow-docket-supreme-court-biden-mexico/|archive-date=August 29, 2021|access-date=September 1, 2021|newspaper=[[The Washington Post]]}}</ref> William Baude has argued that the shadow docket makes it "hard for the public to know what is going on" and "hard for the public to trust that the court is doing its best work".<ref name="quietlydispatches" /> Similarly, [[United States House Judiciary Subcommittee on Courts, Intellectual Property and the Internet|House Judiciary courts subcommittee]] chair [[Hank Johnson]] has contended: "Knowing why the Justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public's trust in the court's integrity."<ref>{{Cite web|last=O'Connell|first=Samantha|date=April 14, 2021|title=Supreme Court "Shadow Docket" Under Review by U.S. House of Representatives|url=https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/|url-status=live|website=[[American Bar Association]]|access-date=September 1, 2021|archive-date=August 28, 2021|archive-url=https://web.archive.org/web/20210828002210/https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/}}</ref>

''[[The Economist]]'' has argued that the shadow docket displays a "deficit of transparency and accountability",<ref name="nohearings" /> while Steve Vladeck has criticized how decisions are "handed down at all hours of the day{{nbsp}}... with little opportunity for public involvement or scrutiny."<ref name="radar" /> He has argued: "For a Court whose legitimacy depends largely on the public's perception of its integrity, the growth of unseen, unsigned, and unexplained decisions that disrupt life for millions of Americans can only be a bad thing".<ref name="showitswork" />

[[File:Adam Liptak 1302020.jpg|thumb|Liptak in 2019|alt=Adam Liptak in a suit and tie, holding a microphone]]
Criticisms of the lack of transparency of the shadow docket preceded the term's coinage in 2015. In 2014, ''New York Times'' Supreme Court correspondent [[Adam Liptak]] criticized the Court's opinions as "not abstruse. They are absent." This was in response to Chief Justice [[John Roberts]]'s comments in his [[John Roberts Supreme Court nomination|2005 confirmation hearing]] that he hoped "we haven't gotten to the point where the Supreme Court's opinions are so abstruse that the educated layperson can't pick them up and read them and understand them".<ref name="dottedlines">{{cite news|last1=Liptak|first1=Adam|author-link=Adam Liptak|date=October 27, 2014|title=Justices Drawing Dotted Lines With Terse Orders in Big Cases|work=[[The New York Times]]|url=https://www.nytimes.com/2014/10/28/us/supreme-court-with-terse-orders-has-judges-and-lawyers-reading-tea-leaves.html|url-status=live|access-date=February 6, 2021|archive-url=https://web.archive.org/web/20201206122636/https://www.nytimes.com/2014/10/28/us/supreme-court-with-terse-orders-has-judges-and-lawyers-reading-tea-leaves.html|archive-date=December 6, 2020}}</ref>

===Bias===
Baude has spoken to a bias present in the rates at which requests are granted, saying that the "government, especially the federal government, has a special ability to get the court's attention."<ref name=quietlydispatches/> Vladeck further criticized this apparent bias:

{{Blockquote
|text=With a newly solidified bloc of five conservative Justices, it is not exactly surprising that a Republican administration would generally fare well{{nbsp}}...  it is not obvious that it is a positive development{{nbsp}}... By waiting for most cases to go through multiple layers of review by lower courts{{nbsp}}... the Court gives itself the benefit of multiple rounds of briefing and argument{{nbsp}}... To abandon this norm only in cases in which the federal government is the complaining party is to invite serious objections grounded in fairness and equity{{nbsp}}... such a shift gives at least the appearance that the Court is showing favoritism not only for the federal government as a party, but for a specific political party when it's in control of the federal government.<ref name=harvardvladeck/>{{rp|126–127}}
|title="The Solicitor General and the Shadow Docket"
|source=''[[Harvard Law Review]]'' (2019)
}}

===Rigor===
The shadow docket has also been criticized for its lack of rigor. Vladeck has argued that the shadow docket "put[s] the justices in the position of deciding weighty legal issues at a very early stage of litigation, in a context in which it is often unclear exactly what the relevant facts are and in which legal arguments have not been fully developed."<ref name="radar" />

Similarly, Shoba Sivaprasad Wadhia, a professor and associate dean at [[Penn State Law]], has stated that "it's hard to imagine that [the justices] have the same deliberation or time to think about the varying arguments by each party."<ref name=enigmatic/> Ian Millhiser, a journalist at ''[[Vox (website)|Vox]]'' who covers the Supreme Court, has argued that "if the Supreme Court pushes too many of its decisions onto its shadow docket, the justices in the majority may never figure out that their first instinct regarding how to decide a case was flawed."<ref name=enigmatic/>

Alito defended the rigor behind the decisions made in the shadow docket, highlighting how time constraints limited what could be expressed in the Court's opinions and how the writing had to be done carefully: "Journalists may think that we can just dash off an opinion the way they dash off articles".<ref name=intimidate/>

===Increased use===
Although over the years the justices have sought to assert that it is "a court of final review and not first view", with the maxim being repeated in 11 of the October 2018 term's cases,<ref name="harvardvladeck">{{cite journal|last1=Vladeck|first1=Stephen I.|author-link=Steve Vladeck|date=November 8, 2019|title=The Solicitor General and the Shadow Docket|url=https://harvardlawreview.org/wp-content/uploads/2019/11/123-163_Online.pdf|url-status=live|journal=[[Harvard Law Review]]|volume=133|issue=123|archive-url=https://web.archive.org/web/20210831034731/https://harvardlawreview.org/wp-content/uploads/2019/11/123-163_Online.pdf|archive-date=August 31, 2021|access-date=February 6, 2021}}</ref>{{rp|126–127}} other criticism has been directed at the significant uptick in the use of the shadow docket.

[[File:Sonia Sotomayor by Gage Skidmore.jpg|thumb|Justice Sotomayor|alt=Sonia Sotomayor smiling]]
In September 2019, Justice [[Sonia Sotomayor]] criticized the government's over-reliance on the practice in a dissent to an unexplained immigration order, saying that "the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively." She went on further, stating that "Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here."<ref name=extraordinary>{{cite news |last1=Millhiser |first1=Ian |title=Justice Sotomayor warns the Supreme Court is doing "extraordinary" favors for Trump |url=https://www.vox.com/2019/9/12/20862320/sotomayor-supreme-court-favors-trump |access-date=April 9, 2021 |work=Vox |date=September 12, 2019 |archive-date=March 14, 2021 |archive-url=https://web.archive.org/web/20210314183613/https://www.vox.com/2019/9/12/20862320/sotomayor-supreme-court-favors-trump |url-status=live }}</ref>

David Cole has similarly argued that "relief should be restricted to the most egregious cases truly requiring expedited action, yet it is increasingly being applied to run-of-the-mill disputes."<ref>{{cite news|last1=Cole|first1=David|author-link=David D. Cole|date=August 20, 2020|title=The Supreme Court's dangerous 'shadow docket'|newspaper=[[The Washington Post]]|url=https://www.washingtonpost.com/opinions/2020/08/19/supreme-court-justices-are-misusing-shadow-docket/|url-status=live|access-date=February 6, 2021|archive-url=https://web.archive.org/web/20201202153409/https://www.washingtonpost.com/opinions/2020/08/19/supreme-court-justices-are-misusing-shadow-docket/|archive-date=December 2, 2020}}</ref>

Justice [[Samuel Alito]] has defended the increased use of the shadow docket, saying it was due to increased applications and comparing it to "complaining about the emergency room for treating too many accident victims who come in".<ref name="Alitospeaksout">{{cite news |last1=Gerstein |first1=Josh |title=Alito speaks out on Texas abortion case and 'shadow docket' |url=https://www.politico.com/news/2021/09/30/alito-on-texas-abortion-case-shadow-docket-514828 |access-date=January 20, 2022 |work=[[Politico]] |date=September 30, 2021 |archive-url=https://web.archive.org/web/20211103100730/https://www.politico.com/news/2021/09/30/alito-on-texas-abortion-case-shadow-docket-514828 |archive-date=November 3, 2021}}</ref>

While the Supreme Court has had a 6-3 conservative majority since the appointment of Justice [[Amy Coney Barrett]] in October 2020, the shadow docket had seen increased use, and the Court treats these orders as precedential despite the lack of opinions attached to the order.<ref>{{cite web | url = https://www.cnn.com/2022/04/07/politics/shadow-docket-supreme-court/index.html | title = Here's what the 'shadow docket' is and how the Supreme Court uses it | first = Paul | last = LeBlanc | date = April 7, 2022 | accessdate = April 9, 2022 | work = [[CNN]] }}</ref> The remaining liberal justices, [[Stephen Breyer]], [[Sonia Sotomayor]], and [[Elena Kagan]], had spoken in various dissents to shadow docket orders on their questionable use. Chief Justice [[John Roberts]] also joined in a dissent on the use of shadow dockets in a case involving the [[Clean Water Act]] that had been authored by Kagan.<ref>{{cite web | url = https://www.cnn.com/2022/04/06/politics/supreme-court-shadow-docket-john-roberts-epa-water/index.html | title = Chief Justice Roberts joins with liberals to criticize 'shadow docket' as court reinstates Trump-era EPA rule | first = Ariana | last = de Vogue | date = April 6, 2022 | accessdate = April 9, 2022 | work = [[CNN]] }}</ref>

===Precedential effect===
As the highest court in the United States, the Supreme Court's rulings have [[precedent]]ial value, being used by the lower courts as guidance for their own rulings.<ref name=radar/><ref name="Alitospeaksout"/> However, by their very nature, shadow docket orders are unexplained and are not intended for use as such.<ref name=radar/> Despite that, the use of shadow docket orders as precedent has increased in recent years.<ref name=radar/> Writing in the ''[[Harvard Journal of Law and Public Policy]]'', Judge [[Trevor N. McFadden]] of the [[United States District Court for the District of Columbia|federal District of Columbia district court]] argued that not all shadow docket decisions should be used for precedent: he said that lower courts should only focus on stays issued by the full Court and that this instruction is "true even if the stay grant features little legal reasoning, and may well be true even when there is no reasoning."<ref>{{cite journal |last1=McFadden |first1=Trevor N. |last2=Kapoor |first2=Vetan |author1-link=Trevor N. McFadden |title=The Precedential Effects of the Supreme Court's Emergency Stays |journal=[[Harvard Journal of Law and Public Policy]] |date=June 2021 |volume=44 |issue=3 |pages=828–915 |url=https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2021/06/McFadden-The-Precedential-Effects-of-the-Supreme-Courts-Emergency-Stays.pdf |access-date=January 20, 2022}}</ref>{{rp|882}}

For example, with respect to denials of ''certiorari'', [[Felix Frankfurter|Justice Frankfurter]] wrote:

{{Blockquote
|text=Inasmuch, therefore, as all that a denial of a petition for a writ of ''certiorari'' means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.<ref name=marylandbaltimore/>
|source=''[[Maryland v. Baltimore Radio Show, Inc.]]'' (1950)
}}

== See also ==
* [[Procedures of the Supreme Court of the United States]]
* [[History of the Supreme Court of the United States]]
* [[In-chambers opinion]]

== Notes ==
{{Notelist}}

== References ==
{{reflist}}

== Further reading ==
* [[Steve Vladeck|Vladeck, Stephen]] (2023). ''The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic''. New York: Basic Book. {{ISBN|978-1541602632}}. [https://lareviewofbooks.org/article/the-law-breaking-supreme-court-on-stephen-vladecks-the-shadow-docket/ Review] by [[Andrew Koppelman]].

== External links ==
* The Supreme Court typically posts notable orders at one of two pages: [https://www.supremecourt.gov/orders/ordersofthecourt/ Orders of the Court] (for unsigned orders of the court or stays by a single justice); and [https://www.supremecourt.gov/opinions/relatingtoorders/23 Opinions Relating to Orders] (if there are concurring or dissenting opinions).
* If the court issues a majority opinion, the order is posted at [https://www.supremecourt.gov/opinions/slipopinion/23 Opinions of the Court]. However, this is uncommon, and most decisions posted here are from the normal merits docket.
* Other orders of a single justice are posted only at a case's docket, through [https://www.supremecourt.gov/docket/docket.aspx Docket Search]. (There is also a page for any [https://www.supremecourt.gov/opinions/in-chambers.aspx In-Chambers Opinions], but [[In-chambers opinion#List of in-chambers opinions since 1990|there has only been one]] since 2014.)

{{SCOTUS horizontal}}

[[Category:Supreme Court of the United States]]
[[Category:United States appellate procedure]]
[[Category:Transparency (behavior)]]
[[Category:2015 neologisms]]