The one-sentence shadow docket
death knell for the constitutional rule of law
Warnings have been given
For years, multiple urgent warnings have come from here about the subversion, corruption and authoritarian radicalization of the USSC. The worst has now come to pass. Our highest court is now solidly anti-democracy, pro-kleptocracy, autocratic, plutocratic and Christian nationalist theocratic.
The shadow docket
For the most part, the USSC has ceased functioning as a pro-democracy institution. Many major court decisions are now made with essentially no explanation at all. The process of federal "law" is now done by djt asking the USSC for emergency relief and the six MAGA authoritarians granting it. Once an application for emergency relief is granted, the USSC can issue a 1-2 page or even a single paragraph "decision" that allows djt to do what he wants. That happens even if what djt wants to do or has done is clearly unconstitutional or illegal. The rule of the dictator-kleptocrat has replaced the constitutional rule of law at the discretion of djt.
Those short, unexplained decisions are issued on what is called the shadow docket. That refers to the USSC's practice of issuing emergency orders and summary decisions outside its regular case docket. Usually the process plays out with no oral argument, very limited briefing, and no detailed written explanation of the court's decision. That is basically the opposite of the traditional "merits docket." For merit cases, there usually are months of briefing, formal oral arguments, followed by a lengthy signed court opinion. By contrast, shadow docket cases are decided quickly, often within a week to ten days of the emergency relief request.
It works by one party in a dispute submitting an emergency request for immediate relief. The other party is given just a one or few days to respond by a deadline the court imposes for reasons known only to the judges. The court then decides to grant or deny the relief the requestor asked for. Lately, djt has been getting emergency relief grants on major matters of critically high importance for democracy and the old-fashioned, now nearly extinct, rule of law.
In theory, shadow docket decisions can be reversed later when the full merits case comes to the USSC for a full decision and explanation. But the grant of relief rigs the underlying case.
Court analyst and legal scholar Steve Vladeck (Georgetown U. law professor) points out that the MAGA judges have recently started to turn shadow docket decisions into documents with precedent power. In the past, court precedents that guided lower court reasoning and decisions were based only on written merits cases. Now shadow docket cases are taking on the merits case precedent character. This signals that the USSC is reducing the role of merits cases to allow a unitary executive president, more or less a dictator, to do whatever he wants.
Vladeck points out the case, Trump v. Boyle, and single sentence (highlighted above) where precedent power in the shadow docket arose first:
Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.
Right there, in that single sentence, the authoritarian MAGA judges inflicted a grievous wound on the rule of law. The old law is dying and dictator law is rising to replace it.
What happens to the underlying merits cases that gives rise to a shadow docket decision? In practice, the underlying case is weakened for the losing party when the court grants emergency relief. There is a one-way ratchet effect. The USSC grants emergency relief and that creates what Vladeck calls precedential vibes. Research shows that shadow docket cases receive substantially more precedential treatment when they grant relief, which changes the status quo of the lawsuit. This creates a ratchet effect where successful emergency applications become building blocks for future victories. By contrast denial of emergency relief has minimal precedential impact. In other words, our authoritarian USSC is using unexplained emergency relief grants to bootstrap djt to dictator-level power.
We are soooo screwed.
Huh? What's a shadow docket??
-- end blog post
-- start TL/DR
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FWIW, if anything, here is part of Kagan's dissent in Trump v. Boyle:
Once again, this Court uses its emergency docket to destroy the independence of an independent agency, as established by Congress. Two months ago, in Trump v. Wilcox, the majority issued a stay allowing the President to discharge, without any cause, Democratic members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). See 605 U. S. ___, ___ (2025) (slip op., at 1). Today, the same majority’s stay permits the President to fire, again without cause, the Democratic members of the Consumer Product Safety Commission (CPSC). Congress provided that the CPSC, like the NLRB and MSPB, would operate as “a classic independent agency—a multi-member, bipartisan commission” whose members serve staggered terms and cannot be removed except for good reason. Id., at ___ (KAGAN, J., dissenting from grant of application for stay) (slip op., at 2); see 15 U. S. C. §2053(a) (requiring “neglect of duty or malfeasance”). ....
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