Supreme Court's 'Shadow Docket' Continues to Favor Trump Administration

The Supreme Court's emergency docket, often referred to as the "shadow docket," has become a significant avenue for the Trump administration to advance its agenda, with a high rate of success in obtaining expedited relief. These rulings, often unsigned and without detailed explanation, allow the administration to temporarily set aside lower court decisions while cases are pending.

Recent examples include an order allowing the resumption of deportations to "third countries" and permission to use a Department of Homeland Security database for verifying voter eligibility ahead of the November midterms. The administration has also sought to restrict gender-affirming care for transgender inmates in federal prisons through this channel.

Legal experts note that the Supreme Court has been more permissive toward the Trump administration's emergency requests compared to previous administrations. "The Supreme Court has changed the rules for when the executive branch can obtain this kind of emergency relief in ways that it is completely different from what they've done in the past," Carolyn Shapiro, a law professor, told TIME. "The Trump Administration has taken that invitation."

Unlike the court's traditional merits docket, which involves thorough legal review, oral arguments, and written decisions, shadow docket rulings are accelerated and typically lack public vote counts or rationale. Traditionally, applicants must demonstrate irreparable harm or that the request serves the public interest. Critics argue that the court has often approved Trump's requests without clearly satisfying these criteria.

"It is rarely a genuine emergency for the executive branch to be thwarted in trying to implement one of its policies while litigation is pending," said Kate Shaw, a Supreme Court expert. "And yet again and again, the court has concluded or appeared to conclude that the executive is experiencing this irreparable harm, such that the policy should be put into effect—regardless of how flagrantly unlawful lower courts have found the proposed policy to be."

The Trump administration has submitted significantly more emergency applications to the Supreme Court than its predecessors. While President Obama filed three over two terms and President Biden submitted 19, Trump filed 41 in his first term and has made the same number of requests in his second. Of the 32 shadow docket decisions concerning his administration since his return, 24 have favored the administration.

These rulings have facilitated actions related to immigration enforcement, government cuts, and construction projects. In September alone, besides the deportation and voter database rulings, the court allowed Trump to temporarily withhold $4 billion in foreign aid.

However, the court has also ruled against the administration on occasion. In September, it declined to allow Trump to enforce restrictions on mail-in ballots. A Justice Department official defended the use of the emergency docket, stating it allows the president's agenda to move forward without undue litigation delays and that lower courts have often blocked lawful policies without justification.

Despite these defenses, concerns persist among legal scholars, lower-court judges, and the court's liberal justices about the increasing reliance on the shadow docket. Justice Ketanji Brown Jackson has voiced worries about the practice's potential to undermine standard review processes. Justice Neil Gorsuch has also commented on the frequency of emergency rulings, suggesting a shift of power to the executive branch. Several lower-court judges have also expressed frustration with the Supreme Court's use of the shadow docket, citing opacity and a lack of uniformity in its rulings.