What the Supreme Court Does in the Shadows

The Supreme Court is issuing its final decisions of the term this month. But it's been extraordinarily active since January, in part because the Trump administration has submitted over a dozen emergency applications asking the court to rule quickly on controversial issues. Those cases are part of what's known as the court's "shadow docket." And increasingly, it's affecting all of our lives. This episode originally published in 2023 and has been updated. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

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• 0:00Speaker 00

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• 0:23Rund Abdelfatah?

  When you think about the Supreme Court, chances are you're thinking about the big decisions. Roe v. Wade, Brown v. Board of Education, Obergefell v. Hodges, Dobbs v. Jackson. These Supreme Court decisions are the ones that make headlines and eventually history books. A lot of them come out around this time of year. They're decisions made after the justices sit through hours of oral arguments, write pages and pages of explanation, opinions citing precedent and making justifications. These decisions have signed arguments for and against that clearly show how each justice decided. They're part of what's called the court's merit docket.

• 1:05Rund Abdelfatah?

  But this year, the Supreme Court has been in the news a lot for a different type of decision. Ones that are taking place quickly, in the shadows, often without full briefing and oral argument.

• 1:18Speaker 02

  President Trump invoked a wartime law that gives him sweeping deportation powers.

• 1:22Speaker 03

  A rarely-used law from more than 200 years ago.

• 1:26Speaker 04

  Hundreds of people who it accuses of being Venezuelan gang members.

• 1:29Speaker 03

  To quickly expel them without hearings or due process.

• 1:33Speaker 05

  They were flown to El Salvador.

• 1:35Rund Abdelfatah?

  Here's an example you might remember. On March 15th, 2025, President Trump dusted off a rarely-used wartime law called the Alien Enemies Act of 1798. We covered its history in an episode back in April. This act gives the president the power to quickly deport non-citizens from an enemy nation during a war or invasion. He used it to order the deportation of Venezuelan migrants who he claimed were members of a Venezuelan prison gang, Tren de Aragua.

• 2:08Speaker 06

  In his order, Trump described Venezuela's Tren de Aragua prison gang as a force invading the U.S.

• 2:15Rund Abdelfatah?

  Just hours later, a legal scramble was set in motion.

• 2:22Speaker 02

  A federal judge blocked his administration from using this law to immediately deport migrants.

• 2:30Rund Abdelfatah?

  The Trump administration wasn't ready to give up. It called for backup from the Supreme Court and filed an application for emergency relief to block that judge's order and resume deportations. And on April 7, 2025.

• 2:46Speaker 07

  This evening, the US Supreme Court backed the Trump administration in its efforts to continue deporting what it says are Venezuelan gang members.

• 2:54Rund Abdelfatah?

  But then, less than two weeks later, the Supreme Court stepped in again with an unsigned, four-sentence-long order issued in the middle of the night. The Supreme Court ordered the Trump administration to temporarily cease deporting a group of Venezuelans. The opposite stance. And then, in the resulting confusion, the court stepped in for the third time to clarify on May 16.

• 3:19Speaker 04

  The unsigned order says that Trump administration did not give people at a detention center enough time to challenge their deportations.

• 3:34Rund Abdelfatah?

  If all that is giving you whiplash, believe me, we're right there with you. This back-and-forth between the Supreme Court and the Trump administration has been playing out in something called "the shadow docket." These are Supreme Court decisions that can be issued quickly, without full briefing or oral arguments, often in response to emergency applications. And these "shadow docket" decisions are often simple, unsigned orders saying, "Yes, this can happen," or "Nope, this can't." No explanation for why.

• 4:11Speaker 04

  It's really hard to fully understand the Supreme Court without understanding the shadow docket, where the court is doing controversial stuff and is not explaining itself.

• 4:22Rund Abdelfatah?

  In recent years, the court has made more and more of these types of rapid decisions on its shadow docket. And that's because increasingly, presidents are asking the justices to intervene in emergencies, like the Trump administration did with the Alien Enemies Act.

• 4:38Speaker 04

  We've gone from one every other year during Bush and Obama.

• 4:42Rund Abdelfatah?

  To almost one a month during the first Trump administration. The Biden administration averaged five per year. And now we're at basically one a week.

• 4:53Speaker 04

  In a brief unsigned order, the court said the administration is free to move forward with the firing of 16,000 probationary federal employees. The US Supreme Court said President Trump can fire two members of independent agencies. Monday's ruling by the US Supreme Court was short and unsigned.

• 5:11Speaker 05

  It allowed the Trump administration to revoke the temporary protected status of hundreds of thousands of Venezuelans. The US Supreme Court says the Trump administration can continue to deport migrants to countries that are not their home nations. The justices did not explain their reasoning at all in their order.

• 5:29Rund Abdelfatah?

  Not only are so-called shadow docket cases coming up more often, but they're also starting to affect more people. That's why we're bringing you an updated version of a conversation we had a few years ago with legal scholar Steve Vladek. A lot of things have changed since then.

• 5:47Speaker 04

  When we first had this conversation, I think you could have a plausible argument that the justices hadn't been paying close attention to what they were doing, that a lot of it was reactive and not necessarily conscious on the justices' part. That's clearly not true anymore.

• 6:09Rund Abdelfatah?

  I'm Randa Abdel Fattah.

• 6:11Speaker 03

  And I'm Ramtin Arablouei. On this episode of Throughline from NPR, how the so-called court of last resort has gained more and more power over American policy and why the debates we don't see are often more important than the ones we do.

• 6:34Speaker 03

  Hi, this is Karina from Chicago, and you're listening to Throughline.

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• 8:08Speaker 05

  Part one. The Everything Else Docket.

• 8:13Rund Abdelfatah?

  As a leading scholar of the American court system, Georgetown University professor Steve Vladek has been teaching about the courts for nearly two decades. He's the author of a book all about the Supreme Court

• 8:26Speaker 04

  called The Shadow Docket: How the Supreme Court Uses Stealth rulings to Amass Power and Undermine the Republic. Not a provocative title at all.

• 8:35Rund Abdelfatah?

  OK, so yes, obviously, it is kind of provocative. I mean, the term "shadow docket" is kind of provocative. So can you walk us through what exactly is hidden behind that phrase?

• 8:49Speaker 04

  Yeah, it's interesting. It wasn't meant to be provocative. When the term was coined by a conservative Chicago law professor named Will Bode in 2015, it was really meant as just an umbrella descriptive catch-all. This evocative term that was meant to capture basically everything the Supreme Court does other than big fancy decisions the court hands down each spring. The shadow docket is, in one sense, the negative space in which the court does everything else. Everything else is a lot of work. It includes basic administration.

• 9:25Speaker 03

  tasks, but also higher stakes decisions. Things like blocking a law from going into effect or allowing an execution to go forward. Vladek is most interested in those decisions because over time they've made up an increasing share of what the court does.

• 9:42Rund Abdelfatah?

  When does the court first start to shift towards, you know, the shadow docket as we know it today?

• 9:49Speaker 04

  So I think there are two dramatic shifts, like two real inflection points before the last few years. And the first is in the early 20th century. So if we go back a second, the Supreme Court, for its first 101 years as an institution, was basically just a creature of Congress. I mean, yes, the court decided big cases, but its docket was controlled completely by Congress. The court heard every case Congress told it to, and no case Congress told it not to. Like, Congress dictated what the court did. Congress would use its power over the court to intimidate and leverage the court all the time. Congress canceled the Supreme Court's

• 10:31Speaker 04

  entire 1802 sitting because the Jeffersonians were mad at the Federalists. Congress would take away the court's jurisdiction in cases it didn't want the court to decide.

• 10:41Speaker 03

  For example, after the Civil War, Congress divided the former Confederate states into five separate military districts, placing those states under military rule until they met certain requirements. When a Mississippi newspaper editor challenged the legality of this, Congress got worried how the justices might rule, and it actually withdrew the Supreme Court's jurisdiction, meaning they couldn't hand down a decision. So at this time, Congress held all the cards, and the Supreme Court's workload was huge.

• 11:11Speaker 04

  The court is overwhelmed with cases. I mean, by the late 1880s, there's a point where the court has 1,800 pending cases on its docket at one point in time, all of which it's supposed to decide.

• 11:24Speaker 03

  All of this was a problem, and especially Big problem for a man named William Howard Taft.

• 11:32Speaker 04

  Yeah, I mean, so, you know, I think insofar as folks know Taft, they know him as a president. But, you know, Taft, before he was president and after he was president, Taft was a lawyer. Right? He was a, he was a Court of Appeals judge in the 1890s. He was the Solicitor General of the United States, meaning he was the federal government's lawyer in the Supreme Court. And Taft's first love was the Supreme Court. Taft was desperate both to be on the Supreme Court and to make the Supreme Court more powerful. And so even before he's president, while he's president, after he's president, he is pushing for Congress to reform the court. He's pushing to get the court its own building.

• 12:12Speaker 04

  And so Taft's vision is that for the Supreme Court to truly play the role he thinks it's supposed to play, it has to be much more autonomous and it has to have much more control over every facet of its work. And when he becomes Chief Justice in 1921, eight years after he's president, he really like devotes himself to carrying those reforms into effect. And the point of these reforms was to transform the Supreme Court's role from, you know, just a bunch of judges who are the last ones to hear every single case to, you know, a bunch of sort of judicial superheroes who sit back and decide which issues are worthy of their time and which ones are not.

• 12:55Speaker 04

  And so the, the first real shift comes in the early 20th century with the rise of, of sercherari, with the rise of Congress giving the court more control over its docket.

• 13:07Speaker 03

  Sercherari, this is a total tongue twister of a term. It just means an order by which a higher court reviews a decision of a lower court. To our ears, that might sound pretty mundane. But at the time, this expanding power of sercherari gave the Supreme Court much more control over its work.

• 13:26Speaker 04

  And what that does is it creates this sort of first step process, the are we going to take this case or not process, which is entirely a black box. Right? Congress provides no rules to govern that process. This is the first big transformation because this is the first time the court is given power to do lots of stuff without explaining itself. And that transformation begets the shadow docket because that creates this first step process.

• 13:58Speaker 04

  Where the court is going to cull all of the appeals that come before it in ways that it's not going to explain.

• 14:05Rund Abdelfatah?

  This is such a transitional time for the court and I and for the country, it's also like a transitional time, right? This period, you know, from the 19th into the 20th century. Can you give us a sense of how the context of the time is also shaping the need for for for kind of the shift on the court?

• 14:26Speaker 04

  Yeah, I mean, there's a huge explosion in federal law during and after the Civil War. I mean, the Civil War really precipitates this massive and fundamental transformation in the powers of the federal government, the size of the federal government, and the extent to which the federal government is involved in regulating features of Americans' everyday lives. Before the Civil War, you know, the odds that you would ever interact with the federal government as an American citizen were very low. After the Civil War, right, there's a Department of Agriculture, there's the Department of Education, there's a National Railroad, there's a national currency. We have the first administrative agencies. And so it really is part of this nationalization and federalization of government where alongside

• 15:07Speaker 04

  those processes come a much busier federal court system. And with a much busier federal court system comes, you know, one of two possibilities. Either you hire a lot more judges to keep up with all of these new cases, or you give the existing body of federal judges more power to decide how they're going to decide cases. And Congress splits the difference. Congress creates a lot more judges in the lower federal courts. So there are a lot more trial and intermediate appeals judges created in the 1890s and 1900s. But Congress leaves the Supreme Court alone. The size of the Supreme Court doesn't change from 1869 onwards. And instead, Congress decides to change the court's role.

• 15:52Speaker 04

  We look around today, we see a Supreme Court that is able to inject itself into virtually every contentious public policy dispute. If the court did not have this kind of control over its docket, it wouldn't be able to do that.

• 16:06Rund Abdelfatah?

  Yes.

• 16:06Speaker 04

  Right? And it wouldn't be nearly as powerful. Modern court's power comes from the discretion that Congress gave and that the court took to basically set its agenda.

• 16:18Speaker 03

  There's a kind of a kind of negative connotation around its power, around this expansion of its ability to both hear cases and how to hear cases, et cetera. But was this expansion of power actually kind of good for some of the more powerful rulings that came from the court?

• 16:33Speaker 04

  Sure. I mean, I guess the I am somewhat agnostic, right, about whether certiorari is a good thing. What to me is such a critical part of the story is, you know, I want folks to understand that certiorari is a really important thing. And that like, we shouldn't talk about the Supreme Court without talking about certiorari, right? So I I'm not averse to the court having some control over its docket. I think the problem that has arisen is that we've gone from no control to complete control. And it seems to me that there's a happy medium somewhere in between that allows for Congress to assert at least a little bit more control, to to exert a little more leverage over the court

• 17:17Speaker 04

  that I think would be healthier from a separation of powers perspective.

• 17:19Speaker 03

  Was there ever a happy medium period?

• 17:22Speaker 04

  I think so. I mean, like, you know, the so between 1925 and 1988, you had this weird mixed docket where, you know, a lot of the court's jurisdiction was discretionary, but a decent chunk of it was still mandatory. Like, there were still a number of cases the court had to hear.

• 17:38Rund Abdelfatah?

  Did you argue that in that period of time where you were kind of just describing that 1925 to 1980s period, where there was a sort of more healthy balance? That was a period of time where arguably the court was a progressive court and was pushing the country forward on things like civil rights issues, on things like, you know, abortion rights. You know, progressives would have said, this is great. The court is ahead of the country and it's taking us in the direction we want to go.

• 18:08Speaker 04

  Yeah, I mean, I I think the I mean, the answer is clearly yes. But I think the, you know, the the point that I try to make in the book and the point that I think gets lost in way too much of our contemporary public discourse is that if the Supreme Court in the 40s and 50s and 60s had been handing down decisions that were wildly out of sync with public opinion as opposed to just sort of a step ahead of it, right? Congress would have pushed back. That that that is the Story of the Supreme Court. And part of what's, I think, troubling to me about the moment we're in is you might love the current court, you might hate the current court. What, to me, I think, can't be denied is this is a court that is not remotely worried about Congress.

• 18:56Speaker 04

  Coming up, how decisions about death gave the court extraordinary new powers, powers that would set it on a path to remake American life.

• 19:16Speaker 00

  Hi, this is Kevin Sather from Indianapolis, Indiana. I just want to applaud you for the work that you do. As always, you're listening to Three Line by NPR.

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• 20:43Speaker 07

  Part two. In case of emergency.

• 20:53Speaker 03

  In 1961, James Meredith applied to the University of Mississippi, determined to be the first black man to ever attend the school. He knew that in over 100 years, the school had never let anyone that looked like him in.

• 21:09Speaker 03

  When his application was predictably denied, Meredith filed a lawsuit claiming he'd been denied entry due to his race. His case ping ponged through the courts, with some judges ruling for the school and others for Meredith.

• 21:24Speaker 03

  Eventually, lawyers asked the Supreme Court to get involved. They said it was an emergency.

• 21:29Speaker 04

  So before 1980, the way the court handled emergencies was actually pretty cute.

• 21:36Speaker 04

  The court left it to individual justices to deal with just about every emergency. So the justices are geographically divided. They all have responsibility for one ninth of the country. The idea is that that justice would act as a proxy for the full court.

• 21:54Speaker 03

  In this case, that justice was Hugo Black. After reviewing the case, he decided that the school had to let Meredith in. Immediate enforcement of the judgment can do no appreciable harm to the university or the other respondents.

• 22:14Speaker 03

  The night the news spread that Meredith was allowed to enroll at the school, riots broke out.

• 22:21Speaker 03

  A mob of angry white people, armed with bricks and Molotov cocktails, attacked the US Marshals who were on campus to protect Meredith.

• 22:30Speaker 04

  President Kennedy appealed to the students and to the people of the state to comply peacefully with the law. Americans are free and sure to disagree with the law, but not to disobey it.

• 22:39Speaker 03

  Two people died, hundreds were injured. But despite the resistance, Meredith did go on to graduate from Ole Miss, partially thanks to that ruling from Justice Hugo Black. Law professor Steve Lattick is the author of the book, "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amend." Mass power and undermine the republic. He says the court's old system of having a single justice make emergency rulings had a few advantages.

• 23:07Speaker 04

  Advantage number one is we've all been in this context. Easier to schedule a meeting with one person than with nine.

• 23:14Speaker 03

  Right, yeah.

• 23:15Speaker 04

  Right, and so, you know, if it was an emergency, usually you could get, you could at least get the justice on the phone. The justices would often, in this capacity, hold in chambers oral arguments, like by themselves, like, hey, come to my office and let's chat. Hmm. Um, they'd write opinions by themselves. And this had two upsides. One is it was a fair amount of process. It was actually, it was, it was deliberative in a way that was not the full court, but that was at least, you know, better than nothing. But two, no one ever confused a single justice's decision for a ruling of the full court. Like, everyone understood these were temporary expedients by one member of the court. Interesting. And that's how things persist, right, all the way through the 1970s.

• 23:58Speaker 04

  What brings it crashing down is the re-institution of the death penalty in 1976. You know, the court imposes what's effectively a nationwide moratorium on capital punishment in 1972 in a case called Furman versus Georgia. Four years later, it changes its mind and says, you know what? Actually, we're gonna let you do it. But the post-1976 death penalty has a lot of rules. Uh, a lot more rules than the pre-1972 death penalty. And those rules have to be litigated. And those rules tend to be litigated only once an execution date is set. So that, that's a posture where you're gonna have emergency applications, where a prisoner is gonna ask an appeals court, the Supreme Court, to stay their execution

• 24:43Speaker 04

  while the courts figure out whether they have a viable objection to their conviction or sentence. So, you know, in the 1960s, the court would maybe get three or four emergency applications a year in death penalty cases. Hmm. In 1983, it gets 83. And with that uptick, right, the court changes its behavior. So starting in 1980, without telling anybody, the court stops having individual justices resolve most applications. It starts this procedure where if it's remotely divisive, if a justice thinks there's a chance that any two of their colleagues might disagree, they're supposed to refer the application to the full court.

• 25:25Speaker 04

  So we have a full court decision instead of a single justice decision. And yet, even though the court goes to this full court process, they borrow from the sursurari model, where if it's an order of the full court, they're not going to explain themselves. And so the court actually stops providing explanations for, you know, grants or denials of emergency relief in contexts in which previously a single justice usually would have. This is a profound shift that nobody notices because it's all in the death penalty space. It's that moment, right, is when the court shifts to this model of full court decisions

• 26:09Speaker 04

  on emergency applications that are not explained, that are not signed, that are not argued, and that are not fully briefed.

• 26:16Rund Abdelfatah?

  Wow. I mean, like, when you step back and think about that, like, was it the more humane approach to basically say, well, the chance that someone who is innocent will get executed if we don't move quickly increases? Was it as well intentioned as that?

• 26:34Speaker 04

  So I have a slightly more cynical take. You could argue that these procedural shifts, although they could be justified on sort of efficiency and collegiality metrics, really were a way of limiting the ability of those justices who are most anti-death penalty to speak for the full court. And you see, starting in the 80s, like a flurry of 5-4 decisions where the court is, you know, turning away death penalty appeals.

• 27:04Rund Abdelfatah?

  That's extremely dark. I just want to sit with that for a second because that's extremely dark. It was essentially a more actually efficient way to...

• 27:15Rund Abdelfatah?

  And act death.

• 27:15Speaker 04

  It's not just that we start to see the court denying requests for stays from inmates on a much more frequent basis, the even darker part is starting in eighty-two or eighty-three, we see far more cases where a state goes to the Supreme Court and says, hey, Supreme Court, a lower court sided with the prisoner and blocked the execution, we want you to unblock it. Oh, my God. And so, like, one of the, one of the real shifts in the emergency dock in the early eighties is the rise of Supreme Court orders that unstay executions, which I have to say, like, I have more trouble with than denials of stays, right, where, where, where, where you're changing the status quo to clear the way for an execution.

• 28:00Rund Abdelfatah?

  Right.

• 28:01Speaker 04

  Essentially, you're saying that that lower court who's like, oh, there's some problems with this, we need to stop it. No, forget their decision. Like, let's just go ahead and do it. Well, it's, it's worse than that, right? I mean, like, I mean, I've got no problem with the Supreme Court saying, hey, lower court, we disagree with you. The crazy part here is the court is granting emergency relief. The court is saying states are irreparably harmed if they have to wait to execute someone. And again, like, very little of this gets explicated because the court is not writing opinions, even though all of the cases where this was happening were death penalty cases, the procedural shifts, the norm shifts, the, the, the change in the court's behavior were not limited in any formal sense to the death

• 28:45Speaker 04

  penalty. It was just that's where, that's where the, the fighting was in that time period. So when does it expand beyond the death penalty? That's the mid twenty-tens, right? So what happened starting in the mid twenty-tens is that the court on a far more regular basis starts to engage in behavior, it had already been engaging it, right, in death penalty cases for thirty-five years in non-death penalty cases. And, you know, whatever the stakes of an individual death penalty case, which are obviously enormous for the prisoner, for the victims, right, for the state, those cases tend not to make law. Right, you know, whether Missouri can execute prisoner Johnson tends not to matter to whether Texas can execute prisoner Smith.

• 29:29Speaker 04

  And so the, the sort of, the, the legal effects of death penalty cases tend to be pretty modest versus- The US Supreme Court put the brakes on a major part of President Obama's climate change agenda- February 2016, when a 5-4 court blocks President Obama's clean power plan- ...regulation requiring every state to reduce carbon- In an unsigned, unexplained order, right, versus, you know, June 2017- ...the major victory for President Trump. The Supreme Court- When a 5-4 court puts back into effect parts of President Trump's second travel ban. Saying that, yes, you can in fact ban some foreign nationals- With very limited explanation and no argument. The President, at a meeting with Republican members of Congress cheering his victory-

• 30:11Speaker 04

  That is the last shift that is really responsible for the current behavior, where now, the procedural pathologies that informed the death penalty in the 80s, 90s are being used in contexts that have statewide and nationwide consequences.

• 30:30Speaker 00

  Coming up, the Supreme Court's shadow docket becomes a policy battleground.

• 30:41Speaker 00

  Hi, this is Justin Whitlow from Lester, North Carolina, and you are listening to Three Line. I want to say that the show is an absolutely wonderful show. I appreciate your deep dive into really interesting stories. Thank you so much.

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• 32:31Speaker 03

  It's a Friday, April 2023. Judge Matthew Kasemaric in the city of Amarillo, Texas, is getting ready to release a major ruling. The case he's presiding over is a big one, a case brought by groups that oppose abortion rights, hoping to take the abortion pill used in more than half the nation's abortions off the market, a pill called Mifepristone. Judge Kasemaric has a long track record of opposing abortion access, and that's exactly what he does.

• 33:05Speaker 03

  A federal judge in Texas invalidating FDA approval of Mifepristone, a widely-used drug in medication abortions. In Washington, DC, halfway across the country, the Biden administration isn't ready to see Mifepristone go down without a fight.

• 33:19Speaker 04

  Vice President Harris told reporters Friday night that courts should not be allowed to tell the FDA what it can do. The federal government and a company called Danko Laboratories, one of the sponsors of Mifepristone, went first to the intermediate appeals court, and then, when that failed, went to the Supreme Court and said, hey, we're going to appeal this decision, which we think is terribly wrong, but we don't think Mifepristone should be blocked while we're appealing. And so, we want something called...

• 33:48Speaker 03

  This is Steve Vladek, law professor and author of the book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He says emergency relief can mean asking the Supreme Court to put a lower court's ruling on hold, or directly block government action. It's a strategy that gained traction in the 1970s to appeal death penalty decisions. And in the abortion pill case, it worked.

• 34:21Speaker 00

  On Friday, the Supreme Court upheld the Justice Department's appeal to freeze a Texas ruling that would roll back FDA approval of Mifepristone.

• 34:29Speaker 03

  Because of the Supreme Court ruling, while the federal government's appeal moved through the court system, the pill stayed on the market.

• 34:42Speaker 03

  It was a move applauded by supporters of abortion rights.

• 34:47Speaker 03

  But to Steve Vladek, watching this all play out was a scary indication of how the court conducts much of its business behind closed doors.

• 34:56Speaker 04

  When the Supreme Court issued its stay, basically keeping Mifepristone available on a nationwide basis, there was no opinion, so we don't know why the court froze the lower court ruling. There was no vote count, we don't know how the justices voted. We had no warning that the decision was coming down, it just dropped on a Friday afternoon.

• 35:20Speaker 03

  This is what the shadow docket is today. It's a mix of the justices deciding what cases they'd like to hear—remember that tongue twister, Sir Shirari—and emergency relief applications. That's when the court is asked to intervene in a case that can't wait for the merits docket, it needs an answer now. These cases don't typically involve oral arguments, and the decisions that are handed down are often unsigned and unexplained. The Supreme Court ultimately did hear full arguments on the abortion pill issue, and Mifepristone stayed on the market. But most shadow docket cases like this...

• 35:56Speaker 04

  This never get that full hearing. This is the problem. If all you have to do is give a thumbs up or a thumbs down, there's no requirement that you sit back and think about the consequences. There's no requirement that you put into context, right? What this ruling is going to mean for the next case? And so this is like not having to write obviates the justices, right? Or exculpates them from the responsibility to actually be deliberate. And so that's where I think one can say this is institutionally irresponsible, even if it's not necessarily malicious. What would be the arguments for the advantages of using the shadow docket the way it's used?

• 36:41Speaker 04

  Well, I mean, again, I think we should separate out certiorari from emergencies. On the certiorari front, I mean, the advantages are, you know, efficiency, right? The court only takes the cases that the justices want to take. They do no work that they don't want to do. Like, who wouldn't want that job? Who wouldn't feel better in a job where they have no responsibilities other than the ones they give themselves? The court would say it allows them to spend more time thinking about the big questions because they're not troubled with the little questions. You might even say it gives more respect to lower courts because a higher percentage of rulings from the lower courts are going to be the last word. So certiorari has defenses. On the emergency relief front, I mean, frankly, like, I think all of the defenses

• 37:25Speaker 04

  are defenses of an idealized version of what the court is doing that most of us could get behind. The notion that the court should have this power, sure, it should. Right? The notion that there are going to be cases where the court won't have time to explain itself, true. Yeah. But like, when the court is upsetting the status quo and when it has time to tell us why, I don't know what the argument is for why it's better for the court to not tell us.

• 37:54Speaker 04

  We first talked to Steve about the shadow docket in 2023. But this spring, we called them up again.

• 38:00Rund Abdelfatah?

  To understand what's changed, given the sheer number of emergency applications the court has received during the first few months of Trump's second administration.

• 38:10Speaker 04

  It's numerically insane, but it also raises all kinds of issues because like the Supreme Court is not set up.

• 38:16Rund Abdelfatah?

  Yeah.

• 38:16Speaker 04

  To handle like one super duper high profile Trump related emergency application every week while it's supposed to also be doing the rest of its job.

• 38:25Rund Abdelfatah?

  I have to imagine that that kind of like constant now flood of emergency application cases, which they're emergency cases, right? So they have to rise to the top, right? Of the Supreme Court's docket. What has that done to the way that the Supreme Court works?

• 38:45Speaker 04

  I mean, we don't know yet, but we're at least starting to see some evidence that it's affecting the rest of the court's work. So, you know, as we're sitting here at the end of May, the court is way behind in picking cases to hear next year. You know, we suspect that some of the big decisions and cases that have been argued this term are going to take longer because the justices, again, are being sort of distracted by these late breaking emergencies hitting over and over again.

• 39:14Rund Abdelfatah?

  Whether it's intentional as a strategy or not, invoking these emergency applications, and then it's sort of like putting this added pressure on the court, it's making me think that it's almost weakening the power of the court in a way.

• 39:26Speaker 04

  I think there's no question that that's true. You know, the Supreme Court only has so much capital to spend when it comes to pushing back against, you know, either of the political branches, but especially the president. And, you know, that capital, you can't quantify it, but I think it's absolutely right that it's finite and that, you know, when the Trump administration is going to the Supreme Court again and again and again, just the volume of it puts enormous pressure on the court to, you know, perhaps side with the Trump administration in contexts in which it wouldn't want to, in contexts in which. 10 years ago, it would never have even considered granting emergency relief.

• 40:05Rund Abdelfatah?

  You know, speaking of Trump, walk us through from the first Trump term to now in terms of these emergency application cases. What were some of the most significant cases on the shadow docket during that first Trump term? And then, you know, moving into the second term, what are some of the new cases that are coming up? And what are the implications they're raising?

• 40:28Speaker 04

  During the first Trump administration, there were a whole bunch of immigration policies that lower courts blocked and that the government tried to use emergency applications to put back into effect. The, you know, different efforts by the administration to restrict, if not eliminate asylum along the southern border, the border wall. And these were all policies that lower courts blocked.

• 40:50Rund Abdelfatah?

  In many of these cases, the Supreme Court used the shadow docket to override the lower court ruling and put these Trump administration policies back into effect.

• 41:00Speaker 04

  And so during the first administration, this became a way for the government to carry out policies that might never be upheld as lawful.

• 41:13Speaker 04

  I think a lot of folks didn't feel the direct impact of these policies if they're not part of immigrant communities. The impact of these policies were felt almost exclusively in immigrant communities and then with the border wall in like the sort of the geographic areas right along the border, right? You know, the transgender military service ban, right? That's a very specific community feeling that impact.

• 41:39Rund Abdelfatah?

  But more and more communities are being affected by these shadow docket rulings. And these rulings weren't just happening under President Trump. During the Biden administration, one ruling in particular impacted an entire state.

• 41:54Speaker 04

  In September 2021, through an unsigned and mostly unexplained order, the court allowed Texas's six-week abortion ban to go into effect so that women in Texas woke up on the morning of September 2nd without access to abortion.

• 42:10Speaker 04

  That brought it home, right? In a way that, for various reasons, it had been limited to discreet communities to that point.

• 42:17Rund Abdelfatah?

  And now, in the second Trump administration, the shadow docket is continuing to creep its way into more and more people's lives.

• 42:25Speaker 04

  What's different to me about the second Trump administration is that the stakes are much higher. So, you know, among other things, we've had emergency applications about whether, you know, immigrants are entitled to end of due process before they're removed from the United States under the Alien Enemies Act. We've had emergency applications about whether Doge is entitled to access to all of our social security data. We've had emergency applications about whether the mass firings of probationary federal employees is lawful. And so it's just like, it is a broader set of issues pitched at a higher level of both legal and practical implications.

• 43:01Rund Abdelfatah?

  I'm curious right now, what are some of the cases that perhaps are more wonky, but could have very far-reaching consequences on our lives?

• 43:09Speaker 04

  I think the Supreme Court's intervention in the middle of May in the case of Gwyn Wilcox, the former member of the National Labor Relations Board who was fired by President Trump, despite a statute that said she could only be fired for good cause. That may seem wonky to folks. That has enormous consequences for the independence, or lack thereof, of lots of different federal government entities that we actually quietly depend upon to be independent. When the president can just appoint his friends and buddies to run things, that, I think, will raise questions, no matter who the president is, about how objective those agencies are acting, about how reliable their information is.

• 43:51Speaker 04

  And so, you know, there are all kinds of ways in which some of these wonky or emergency applications are clearing the way for pretty significant restructurings of the federal government in ways that may not be visible to us, but in ways that we will feel, even if we can't see.

• 44:08Rund Abdelfatah?

  At the center of the Wilcox case is an idea called unitary executive theory.

• 44:14Speaker 04

  The reason why the Wilcox case is such a big deal is because when the Supreme Court intervened in the middle of May and cleared the way for Trump to fire Gwyn Wilcox and Kathy Harris, right? It was signaling that it is inclined to actually clear the way for, really, the full compliance. version of the unitary executive in ways that are going to make it very, very hard to push back against a lot of what Trump is doing.

• 44:36Rund Abdelfatah?

  Unitary executive theory is a way of looking at the Constitution that basically says the Constitution gives the powers of the executive branch, like being commander in chief of the armed forces or removing agency officials to one person, the president. If there are laws that get in the president's way, the unitary executive theory would say, well, those laws are unconstitutional.

• 45:01Speaker 04

  We have never in American history lived under the unitary executive theory. The Supreme Court has been moving in that direction for the last 15 or 20 years, but it has never fully embraced it, partly because our history has been defined much more by, you know, inter-branch dialogue, by the notion that like, we should divide power, not, not sort of accumulate it in each of the branches.

• 45:25Rund Abdelfatah?

  Right.

• 45:26Speaker 04

  One of the things that's really striking, for better or for worse, about the second Trump administration, is we're seeing what happens when the unitary executive theory runs amok, because, you know, here we have a president who has very, very strong controversial views, and he wants every single person dispensing even an ounce of executive power to share his views.

• 45:48Rund Abdelfatah?

  This raises, I think, a question that has come up a lot since the second Trump term began, which is, who is the check on the executive power right now? And the, the answer, it seems, is the courts, right? Obviously, the Supreme Court being the most powerful of all the courts. And when we last spoke, it seemed like the conversation in the country was sort of centered around the Supreme Court having too much power, that maybe the Supreme Court's power had gotten too bloated and needed to be reined in. And now, you know, as that unitary executive theory sort of illustrates, we're talking more and more about the executive taking too much power.

• 46:34Speaker 04

  We've been building toward that for a while, you know, as Congress has increasingly become not just dysfunctional, but just inactive. Presidents of both parties have been left ever more to rely upon executive power and increasingly dubious claims of statutory authority to implement any of their policies. Policy objectives, that's not new. I think what's different is that what folks like I had been criticizing when we criticized the Supreme Court as recently as, you know, six months ago, was that the court had basically become aloof from the separation of powers conversation. That the separation of powers depends upon all three branches pushing up against each other. As James Madison wrote in The Federalist, that ambition must be made to counteract ambition.

• 47:18Speaker 04

  And that the court had become too ambitious, right? Well, the only upside of an ambitious court is that an ambitious court might be more inclined to push back against the ambitious executive. The problem there, right, is that we have a court that is at at once very into its own power, but also very into executive power, right? We have a majority of justices at the moment who are more supportive of a broader theory of executive power than we've ever had on the Supreme Court before. And so both things are true. We have a court that is very into preserving its own power, but also, you know, very, very willing to give the executive a whole lot of power. And then the question is, well, then who's losing out?

• 48:03Speaker 04

  Yeah. And the answer is Congress, right? The answer is that like, it's not just that this is sort of ignoring Congress. It's that it is affirmatively disabling Congress, even if we had a responsible Congress from pushing back. So like Wilcox is a good example. Congress actually passed a statute that says you can't fire someone like Gwynn Wilcox without good cause. And, you know, that statute is just no, never mind to the Supreme Court at this particular moment in American history. And that's really problematic because now you have the Supreme Court leaning into this space where we're just going to see more executive judicial confrontations going forward with less and Less and less of a role for Congress. I mean, I think in the long term, that's not sustainable.

• 48:48Speaker 04

  And it's part of why all of these emergency applications in the Supreme Court are so important. Because those emergency applications are where the rubber is really hitting the road. With regard to just what the Trump administration can and can't get away with.

• 49:03Rund Abdelfatah?

  I think one of the things that, again, it sits in this like sort of murky, the unspoken territory where it's like, that would require lawyers and courts actively being willing to continue to push back against the administration, an administration that said and shown that it is willing to take action against people who oppose it.

• 49:25Speaker 04

  Well, and an administration that has been critical to a degree we've never seen before of specific federal court judges, right? An administration that has questioned whether federal courts even have this power, even though they've exercised it consistently for two centuries, right? And so, you know, I think it's sort of, it is a longer term conversation where the administration wins just by not losing. Where it can slowly erode public confidence in the courts, right? Where it can sort of try to sort of build up momentum for the notion that like courts are not to be trusted, right? It's just, it's part of this broader effort to just delegitimize those institutions that are sources of credibility in our, in our discourse and our culture.

• 50:09Rund Abdelfatah?

  What is something that you would say people listening should be focusing on? And what is something that perhaps is being misunderstood in this conversation right now?

• 50:20Speaker 04

  It's very common in the flow of the typical Supreme Court term for that last week of June, right about when folks will be listening to this, to be like the crescendo, the, you know, the, the apotheosis of, of everything the Supreme Court has done that term. Because it's when historically, all the biggest decisions come out. And I think the most important thing for folks to understand is that that's not this term.

• 50:48Speaker 04

  The Supreme Court used to be a sort of pay attention to it a couple of weeks out of a year kind of operation. You know, for better or for worse, I think it really is now a pay attention to it all the time. Kind of operation. And, you know, we ignore what the court is doing and we ignore what the Trump administration is asking the court to do at our peril.

• 51:15Speaker 04

  We reached out to the Supreme Court for comment on this episode. They didn't respond.

• 51:24Rund Abdelfatah?

  And that's it for this week's show. I'm Randa Abdel Fattah.

• 51:28Speaker 04

  I'm Ramtin Arablouei, and you've been listening to Throughline from NPR.

• 51:33Rund Abdelfatah?

  This episode was produced by me.

• 51:35Speaker 04

  And me and.

• 51:36Speaker 06

  Lawrence Wu. Julie Kane. Anya Steinberg. Casey Minor.

• 51:41Speaker 03

  Christina Kim. Devin Kadyama. Peter Balanon Rosen. Akshara Ravishankar. Amber T. Irene Noguchi.

• 51:53Rund Abdelfatah?

  Fact checking for this episode was done by Kevin Vocal. It was mixed by Jimmy Keely. Music was composed by Ramtin and his band Drop Electric, which includes.

• 52:03Speaker 04

  Anya Mizani. Navid Marvi. Sho Fujiwara.

• 52:07Rund Abdelfatah?

  Thanks also to Johannes Dergi and Jessica Payne.

• 52:12Speaker 04

  And as always, if you have an idea or like something you heard on the show, please write us at [email protected].

• 52:20Rund Abdelfatah?

  Thanks for listening.

• 52:33Rund Abdelfatah?

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