Supreme Court Is Split on What to Call the ‘Shadow Docket’

About a decade ago, William Baude, a law professor at the University of Chicago, was drafting a law review article with a working title so bland and uninviting that it would be lucky to achieve obscurity. He was going to call it “Paying Attention to the Orders List.”

He had served as a law clerk to Chief Justice John G. Roberts Jr., and he knew his way around the Supreme Court’s docket. And he had been noticing that the court was increasingly issuing terse orders deciding consequential matters with a notable lack of transparency.

A colleague, Justin Driver, now a law professor at Yale, read the draft and told Professor Baude that his title was terrible. Professor Driver had a sexier suggestion: “The Supreme Court’s Secret Docket.”

That was not quite right, Professor Baude recalled the other day. But he appreciated the nudge, and he went with “The Supreme Court’s Shadow Docket.”

Ten years later, Supreme Court justices are still debating whether “shadow docket” is a fair label for the unsigned orders that the court issues, often without reasoning, in quickly responding to applications for emergency relief, usually without the benefit of full briefing, oral arguments or in-person discussions.

Whatever you call it, this new docket has lately become a central feature of the court’s work, competing with the more familiar and far more considered and deliberate merits docket, in which the justices consider two rounds of briefs, hear arguments and produce long and careful opinions.

This year alone, the court has already received more than 20 emergency applications from the Trump administration, on issues as weighty as immigration, policing, government spending and the leadership of independent agencies. But much remains unsettled about this parallel docket, including what to call it.

Justice Elena Kagan said in July at a judicial conference that she has used the term “shadow docket” in dissent “when I was feeling particularly annoyed.”

That was the case in 2021, when the majority issued a midnight ruling that left in place a Texas law effectively overturning Roe v. Wade in the state — as the court would do nationwide the next year.

In dissent, Justice Kagan wrote that “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”

Justice Kagan was also annoyed the following year, accusing the majority of acting too quickly in a voting rights case, “based on the scanty review this court gives matters on its shadow docket.”

Justice Samuel A. Alito Jr. is not a fan of such critiques. In a 2021 speech, he said the term “shadow docket” was nothing less than an assault on the legitimacy of the court.

“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” he said. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”

Most justices seem to have settled on the “emergency docket” to describe the court’s fast track. Justice Kagan said that was her preferred term, and Justice Amy Coney Barrett said the same thing last week on the “Advisory Opinions” podcast.

In remarks at a judicial conference in July, Justice Brett M. Kavanaugh floated a third label, on the theory that not all requests for temporary relief amount to true emergencies.

“I like ‘interim orders docket,’” he said. “That’s a direct term to capture what we’re doing.”

Stephen I. Vladeck, a law professor at Georgetown, said he found that last term “almost affirmatively misleading.” Some of the court’s rulings, he said, could have decidedly permanent consequences, as for migrants subject to deportation and federal workers fired from their jobs.

Professor Vladeck, the author of “The Shadow Docket,” a book about what he called the court’s “stealth rulings,” added that “it’s revealing that the court’s defenders are trying to have a debate over terminology right now instead of a debate over what the court is actually doing.”

Professor Baude, whose article started the debate, said last week that “interim orders docket” was fine with him. But he added that he regrets nothing about coming up with “shadow docket.”

“I stand by the term,” he said, “and I do think it still captures the point that what’s happening here is not the same, not as public, not as easy to understand, not as careful, as the Supreme Court’s real work.”