(Roughly) Daily

We have all, understandably, been paying a great deal of attention to what the U. S. Supreme Court has been deciding. But as Joe Patrice reminds us, it’s important to attend to how they are making their decisions as well…

Conservative justices have spent years at war with two words. I know you’re thinking it’s something like “equal protection” or “reproductive rights,” or “basic ethics,” but let’s be serious — they already won those wars. The two words that get the conservatives riled up these days are “shadow docket.” Samuel Alito blasted the media for using the term to create the impression that the Supreme Court “is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view,” just because the Supreme Court is, in fact, deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view. Brett Kavanaugh even channeled his inner Gretchen Wieners seeking a “fetch”-esque rebrand, hoping the term “interim docket” might catch on to make the flurry of consequential constitutional decisions rammed through without briefing or written opinion seem less… shady.

Well, maybe they’re right! Maybe it is time to drop the shadow docket. Not because the Court’s aggressive abuse of the procedure is any more legitimate, but because the metaphor broke. A shadow needs something real to stand in the light, while the shadow is the smaller, murkier thing trailing behind.

But now, the shadow docket is the Supreme Court’s preferred way of doing business. The outlier is when the justices deign to respect transparency.

ProPublica set out to put numbers behind the shadow docket. Analyzing the Court’s records, and excluding simple administrative requests and capital cases that have long lived on the emergency docket, ProPublica found back in July that the shadow has overtaken the merits docket:

I discovered that in the term that ended in 2025, the justices issued more substantive decisions on their emergency docket than in cases argued in open court. Experts told me this was likely the first time this has happened in the court’s modern history.

The Supreme Court issued 63 shadow orders in the term ending last year, to only 56 with argument and real, written and signed majority opinions. This year isn’t looking much better.

When the kitchen door handles more traffic than the front door, it’s just the front door now. The briefing-argument-signed-opinion routine everyone learned in school — and which underpins the judiciary’s entire claim to legitimacy — is now the side project. We shall henceforth dub the merits docket as the “transparent docket,” a quaint exhibition the justices run from October through June in between unbriefed and unexplained rulings to rewrite constitutional order.

ProPublica’s Ken B. Morales put the numbers to the Supreme Court itself:

Representatives from the Supreme Court did not respond to my questions.

You have got to hand it to the justices for their commitment to the bit.

ProPublica notes that “Every decision the court has made since July has been on its shadow docket.” Which is always true during the Court’s summer break — but historically the summer break was a “break” and not business-as-usual. These days, the Court doesn’t take summers off from deciding things, just from explaining them.

Oh, remember back in the day when Amy Coney Barrett whined about the public needing to “read the opinion.” That was before she decided well, you can’t expect us to put ourselves on the record when we blow up constitutional order!

The surge in these under-the-table orders have mostly inured to the benefit of the Trump administration. Like the Court greenlighting the president’s power to blow up and then squander millions in taxpayer funds to build vanity projects — a power we hope to see applied to One First Street soon. But Trump has suffered his share of losses through the process too, notably this month’s block on Missouri’s new gerrymander and the order upholding the injunction on Trump using the Postal Service to steal mail-in ballots.

But as much as it warms the heart of anyone who cares about constitutional order to see the Trump administration lose, this is about more than the outcome. We should have arguments and signed opinions. The Court’s power derives from its power of persuasion, as Judge J. Michael Luttig has said. An emergency stay is all well and good if issued to give the justices time to set up a proper, transparent process.

But too often these days, as Professor Vladeck notes, the supposedly “interim” order slides into de facto permanence without the Court bothering to follow up…

Eminently worth reading in full: “Supreme Court ‘Shadow’ Docket Is Now Bigger Than The Real, ‘Transparent’ One,” from @joepatrice.bsky.social in @abovethelaw.com.

* Robert Reid, 1st Earl Loreburn

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As we agree with Louis Brandeis that “sunlight is the best of disinfectants,” we might recall that it was on this date in 1967 that Thurgood Marshall was sworn in as the first African-American justice of the United States Supreme Court. Appointed by President Lyndon Johnson, Marshall had been a storied civil rights attorney and jurist (Federal Court of Appeals); he served on the highest bench from 1967 until his retirement in 1991.

Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

— Thurgood Marshall

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