The New York Times exposed the secret origins of the Supreme Court’s “shadow docket” and its impact on our democracy.
Most Americans have never heard of the “shadow docket.” But if you have wondered how the Supreme Court could block clean air and water guidelines in the middle of the night, halt an election rule days before voters go to the polls, or allow a Texas abortion ban to take effect without a single day of oral argument — the answer lies in that obscure phrase.
A bombshell New York Times investigation published last week, based on leaked internal memos obtained by reporters Adam Liptak and Jodi Kantor, now reveals exactly how this practice was born: in five frantic days in February 2016, as Chief Justice John Roberts quietly rewrote the rules of American judicial procedure.
What Is the Shadow Docket?
The Supreme Court normally decides important cases through a deliberate, transparent process. Before the cases even get to the Supreme Court, the parties often litigate the issues extensively before the federal district courts and the circuit courts of appeals, allowing these courts to develop a detailed factual record and narrow the legal issues in dispute. When the rare cases get to the Supreme Court, parties submit extensive written briefs. Lawyers argue before all nine justices in open court. The justices then issue lengthy written opinions — signed, reasoned, publicly debated — explaining exactly why they ruled as they did. The entire process takes months, sometimes over a year.
The “shadow docket” is the opposite.
If nothing else, these memos should utterly dismantle Roberts’ reputation as the impartial institutionally-minded jurist, who believes in judicial restraint above all else.
It refers to emergency orders and unsigned rulings issued quickly — sometimes within days, or even hours — without full briefing, without argument, and often without any explanation whatsoever. A one-sentence order might block a federal regulation affecting hundreds of millions of people, and the public receives no reasoning at all. As University of Texas law professor Stephen Vladeck, who literally wrote the book on this subject, has put it, the Court is making consequential decisions “behind closed doors.”
Five Days in February 2016
The Times’ reporting pinpoints the creation of the shadow docket to a specific moment: February 5–9, 2016, when Roberts and his colleagues exchanged a series of confidential memos about whether to block President Obama’s Clean Power Plan, a landmark EPA initiative designed to reduce carbon emissions from power plants. Notably, many power plants had already complied with the regulations, clearly indicating that these regulations would not harm industry. The D.C. Circuit Court of Appeals had already decided a stay was unnecessary and had put the case on a fast track. But Roberts — whose chambers oversee the D.C. Circuit — had other ideas.
Over five days, the justices debated in secret.
Roberts argued that the Clean Power Plan would cause “substantial and irreversible” harm before the Court could review it. Instead of citing to a well-developed record (which did not exist), Roberts claimed that solar and wind investments “cannot be undone” and even quoted an off-the-cuff BBC interview with EPA Administrator Gina McCarthy. Predictably, Justice Samuel Alito signed on enthusiastically. Justice Anthony Kennedy — the decisive swing vote, who would later retire to allow Trump to nominate Justice Brett Kavanaugh — offered the most revealing logic of all: the Court was going to block the plan eventually anyway, so why wait?
Three liberal justices — Stephen Breyer, Elena Kagan, and Sonia Sotomayor — objected that what Roberts was proposing was, in Justice Kagan’s word, “unprecedented.” The D.C. Circuit had already decided no emergency existed. For the Supreme Court to override that judgment at the emergency application stage, without full briefing or argument, had simply never been done before. “The applicants’ assertion that, absent relief, they will have to begin preparing … by taking coal plants out of service,” Kagan wrote, “is both entirely speculative and highly doubtful.”
On February 9, 2016, the Court issued its order — a single terse paragraph, no reasoning, no explanation. The vote was 5 to 4, with all four liberals dissenting. It was the first time in history the Court had stayed a federal regulation before any appeals court had even reviewed it. The memos — 16 pages of debate — remained secret until the New York Times published them last week.
Roberts the “Institutionalist”: A Reputation Worth Revisiting
John Roberts has cultivated, with considerable success, the public image of a careful steward of the Court’s institutional integrity. He has fretted publicly about the appearance of partisanship. He has occasionally crossed ideological lines on high-profile merits decisions. The press has largely rewarded him with the label “institutionalist.”
The February 2016 memos reveal a different story. Roberts did not wait for the D.C. Circuit to complete its review. He did not call for full briefing on an unprecedented legal question. He did not write a word of public explanation for his Court’s historic departure from prior practice. He came to his colleagues with a predetermined conclusion — the Obama plan was unlawful, it would undermine the “major questions doctrine,” it would harm industry, and it needed to be stopped now — and he used the private memo process to build a majority. The one institutional norm he scrupulously observed was secrecy.
The shadow docket has been deployed overwhelmingly to advance conservative policy priorities — blocking Democratic regulatory initiatives, enabling restrictive voting rules, permitting abortion bans, and shielding executive overreach from lower court checks.
A genuine institutionalist would have recognized that the emergency docket exists for genuine emergencies such as death penalty cases, not for fast-tracking ideologically convenient outcomes. The procedures Roberts bypassed — briefing, argument, written reasoning — are not bureaucratic formalities. They are the mechanisms by which courts earn and sustain public trust. Roberts dismantled them quietly, in a five-day memo exchange that the public was never supposed to see.
If nothing else, these memos should utterly dismantle Roberts’ reputation as the impartial institutionally-minded jurist, who believes in judicial restraint above all else. Roberts advocated for the creation of the shadow docket to benefit industry over irreparable harm to our environment, and disregarded objections from his fellow Justices that the move was not only unprecedented, but also violated the separation of powers.
A Decade of Negative Consequences
The 2016 Clean Power Plan order was not a one-time exception. Roberts and his colleagues opened a Pandora’s Box by creating the shadow docket. Consider the results-oriented judging that followed:
2017 — Trump Travel Ban: Within months of taking office, the Trump administration used the shadow docket to partially reinstate its travel ban blocking refugees and nationals from several Muslim-majority countries, obtaining emergency relief before the case had been fully argued on its merits.
2020 — COVID Voting Rules: As the 2020 election approached, the Court issued a series of shadow docket orders affecting voting procedures in Wisconsin, Alabama, and other states — orders that, taken together, made it harder to vote during a pandemic, without a single hour of public argument.
2021 — Texas Abortion Law: In one of the shadow docket’s most consequential uses, the Court allowed Texas’s S.B. 8 — a law banning most abortions and deputizing private citizens to enforce it — to take effect in an unsigned, one-paragraph order issued in the middle of the night. Months before formally overturning Roe v. Wade, the Court had already signaled its direction through the shadow docket.
2025–2026 — The Trump Second Term: The Brennan Center for Justice reports that in just its first months, the second Trump administration filed emergency applications at a pace dwarfing any prior presidency, and the Court’s conservative majority granted them at an extraordinary rate. The Court blocked lower court orders on immigration enforcement, including by allowing racial profiling to continue. The Court permitted the executive branch to defund agencies, including those responsible for advanced cancer and other scientific research. The Court’s shadow docket rulings tacitly authorized mass firings of civil servants. All of these rulings were issued without full briefing or explanation, leaving lower courts with little or no guidance on how to proceed. The Court has ignored the irreparable harm caused to federal institutions, employees, and the public in favor of advancing the agenda and the power of the executive branch.
2026 — New York Congressional Map: In March 2026, the Court halted a state court order that would have redrawn a Republican-leaning congressional district — preserving a map that a lower court found illegally diluted minority voting power — without waiting for New York’s highest court to weigh in.
Why This Matters to Every Citizen
The pattern across a decade is unmistakable: the shadow docket has been deployed overwhelmingly to advance conservative policy priorities — blocking Democratic regulatory initiatives, enabling restrictive voting rules, permitting abortion bans, and shielding executive overreach from lower court checks. When the Court does occasionally use emergency procedures to pause a Republican administration’s action, it is the exception that proves the rule.
This is not a procedural abstraction. When the Court issues an unexplained order staying a regulation, that stay can last years while litigation proceeds — long enough to render the underlying policy moot. When an abortion ban is “temporarily” allowed to take effect, real people lose access to medical care in the interim. When voting rules are changed at the last minute, election administrators and voters are left scrambling.
The framers designed a Supreme Court that would check political power through transparent, reasoned deliberation. The Roberts shadow docket is the opposite: political power exercised through speed, secrecy, vibes, and the studied refusal to explain. The New York Times has now shown us, in Roberts’s own words, exactly how it began — not as a regrettable emergency measure, but as a deliberate choice, made in private, without a single word of public justification.
The Supreme Court’s shadow docket rulings are undermining the rule of law. That is worth knowing. And it is worth being angry about.
