| Two prominent episodes last week help frame the ongoing debate over the propriety of the U.S. Supreme Court’s approach to its emergency-relief cases, often (and pejoratively) referred to as the Court’s “shadow docket.” | | The first noteworthy event was Justice Ketanji Brown Jackson’s delivery of the James A. Thomas Lecture at the Yale Law School (YLS). Jim Thomas was a great guy, and served as Dean of Admissions at YLS for decades. He was responsible for helping shape many entering Yale Law classes that, in turn, have helped shaped the American legal profession. As far as I can tell, last week’s lecture was Justice Jackson’s first major appearance at YLS, and she used the occasion to offer a full-throated critique of the emergency-relief docket, one that closely tracked and elaborated upon her dissenting opinion (that I analyzed in an earlier column) in Noem v. Doe. Justice Jackson’s lecture can (and should) be viewed and heard here. | | The second episode that (rightly) drew a lot of attention was the disclosure and analysis by New York Times (NYT) reporters Adam Liptak and Jodi Kantor of a series of internal memos among various of the Supreme Court Justices a decade ago (in February of 2016) in what some regard as a pivotal case in the modern shadow-docket era: the Supreme Court’s decision by a 5-4 vote (reflecting a conservative-liberal split) to block implementation by the Environmental Protection Agency (EPA) of President Barack Obama’s Clean Power Plan at the behest of the energy industry and the state of West Virginia. The challengers (who were unsuccessful in the lower courts in obtaining an immediate block on the EPA’s program) argued that Congress never intended to authorize the EPA’s sweepingly ambitious and costly regulatory initiative when Congress empowered the EPA in the 1970 Clean Air Act. The Court, without significant public explanation, granted the challengers’ request to block the Plan as the case continued to be litigated in the lower courts, an action that Kantor and Liptak say “sent the Court spinning in new directions” and reflected “a questionable new way of operating” that has only accelerated in its frequency and importance during the first 15 months of President Donald Trump’s second term. | | Each of these episodes is important in its own right (and the NYT story reprises troubling questions about Supreme Court leaks that riveted the nation a few years ago when a draft of the then-yet-to-be-released Dobbs decision overruling Roe v. Wade was leaked to Politico), but taken together they, sometimes explicitly and sometimes implicitly, put front and center a series of criticisms of the Court’s approach over the last decade, and especially over the last year, towards many high-profile requests for emergency relief even as a litigation is proceeding apace in the lower courts. Some of the criticisms miss the mark or are overstated, whereas others are much more fair and powerful. | | Let’s start with the critiques of what the Court has been doing that seem misguided, or at least insufficiently theorized. The argument against the Supreme Court’s increased propensity to grant interim relief while lower courts are still in the process of sorting things out rests on several premises. One, implicit in the NYT piece, is that the conservatives on the Court seem result oriented; they were willing to use emergency docket a decade ago to rein in a President, but ten years later they (with some changes in Court membership for sure) have done just the opposite—intervening in cases in order to enable, rather than curtail, broad presidential power. I think there are strong responses to that suggestion. For starters, the current Court is reining in President Trump in the (more important, and more final) regular-docket, full-blown, cases; President Trump lost big (6-3) in the blockbuster tariffs case, will lose lopsidedly in the Lisa Cook/Federal Reserve case and also in the birthright-citizenship executive order case. To be sure, the President will likely win in Trump v. Slaughter (involving his power to remove Federal Trade Commissioners) and the President’s party may win in the Voting Rights Act (VRA) case from Louisiana, but the VRA case is not about presidential power, and Barack Obama or Joe Biden would have won if either of them had tried to fire an Federal Trade Commissioner, so the Court is not being inconsistent in that setting. Moreover, if the conservative Justices seem hypocritical (or at least inconsistent) in blocking Obama’s EPA but not Trump’s Department of Homeland Security (DHS), then so too do the liberal Justices who would have permitted the 2016 Clean Power Plan to go into effect while the case proceeded but have not been willing to permit President Trump’s ambitious immigration reforms to be implemented pending full litigation. | | Ah, but one might argue, in both settings the liberal Justices were willing to defer to what the lower courts had done; if the lower courts had not blocked whatever the administration had done (as in 2016), neither should the Supreme Court. And if the lower courts had blocked the administration (as often occurred in 2025), then still the Supreme Court should defer to them. That brings up a second (and meatier) criticism of the current Court’s approach—that it is insufficiently deferential to the lower courts. This was one of the big themes of Justice Jackson’s remarks. (In this regard, she discussed the Court’s seeming disregard for the principle that interim relief is supposed to preserve the “status quo.” Since here, as elsewhere, “status quo” can be a malleable concept—in 2016 was the “status quo” the state of things before or after the EPA announced its new initiative, and in 2025, was the “status quo” the state of things before or after President Trump’s ambitious executive orders?—I assume she meant by that term the state of things at the time the Supreme Court is being asked to intervene.) | | But this suggestion that the Court is insufficiently respectful of leaving the lower court decisions (in either direction) intact as litigation below continues to work its way through the system requires us to ask a crucial but often unexplored question: why, precisely, should we think the lower courts’ decisions to temporarily block (or leave unblocked) proposed government action are worthy of deference? One answer might be the lower courts are closer to the facts on the ground (and they make it their business to understand complex factual scenarios). That is fair enough (and indeed quite powerful) in some cases, but in the vast majority of high-profile emergency-relief cases in recent years, the crucial contested questions are far more legal than factual. President Obama’s Clean Power Plan is a good example. The memos the NYT uncovered show there was some dispute over precisely when and how much power-generating companies would have to divert substantial resources to begin to prepare for full compliance with the EPA’s mandates, but no one really denied the industry was soon going to have to incur some substantial costs that would be nigh impossible to recoup. The dispositive question in the case was whether the Clean Power Plan was authorized by the Clean Air Act, which is a pretty pure question of statutory interpretation against a backdrop of constitutional non-delegation (and related, emerging major-questions-doctrine) considerations. I happen to think the majority’s instinct on the merits in the EPA case was right (just as the same instinct in the Trump tariff case was right), but even if one disagrees with me on this, there is no real reason that the D.C. Circuit’s decision (made with minimal explanation itself) that the Clean Power Plan was likely permissible should have been given great weight by Supreme Court Justices who were going to have the ultimate say and who had already given a lot of thought to many of the big, legal doctrines, concerning statutory interpretation in the shadow (no pun intended) of the Constitution, that were at stake. . Similarly, in the several emergency-relief cases in 2025 that involve the President’s power to remove officials from so-called “independent” agencies, does anyone believe most of the Justices hadn’t already given a lot of thought to that (largely) legal question? Or that the lower court’s (time-constrained) predictive instinct about the ultimate outcome of the case was better than the Supreme Court’s (similarly hurried) own assessment? | | To be sure, sometimes one litigant’s (even the President’s) likelihood of ultimately prevailing on the merits is not sufficient to warrant interim relief if the other party will suffer grave irreparable harm and the first litigant will not. This, too, was a big theme of Justice Jackson’s speech. When asked why the government doesn’t suffer irreparable harm when it can’t implement its policies on its preferred timeline, she offered two responses. One is that the government’s harm is too “abstract.” But the liberals’ attitude in 2016 demonstrates that “abstract” government harm is important and can easily be made more concrete. President Obama’s EPA fashioned its plan because of a perceived “climate crisis.” That is an abstract concept, but does anyone think the harm that might be caused by climate change—melting arctic ice, more extreme storms, rising sea levels, lower crop yields, etc.—is not real, or not really important, in the real world? The short of it is that in these cases where real people with real lives who face real risks challenge government policies adopted by a President who got elected with the support of real people with real lives who want real change because they felt real problems in their communities, there is very likely to be irreparable harm on both sides of the scale. That is not to say one side’s irreparable harm could not, in a given case, seem weightier than the other side’s. But reaching that conclusion when there is some substantial irreparable harm on both sides is often not easy (which is why the likelihood of success on the merits often drives outcomes in these cases). And the difficulty cannot be avoided by saying, as Justice Jackson does, that the government simply doesn’t suffer any important and real harm in being forced to wait to enforce its policies until the litigation has been resolved on the merits. | | Interestingly, the liberal Justices, including Justice Jackson, sometimes seem to appreciate this even though at other times they seem to deny it. When the three Democratic appointees on the Court opposed the Court’s granting of a stay last year to permit President Trump to fire a member of the National Labor Relations Board in Trump v. Wilcox while the case was still being litigated, Justice Kagan, joined by Justice Sotomayor and even Justice Jackson, wrote that: | the relevant interest [involved in terminating a Board member] is not the “wrongfully removed officer['s],” but rather Congress’s and, more broadly, the public’s. What matters, in other words, is not that Wilcox [and others] would love to keep serving in their nifty jobs. What matters instead is that Congress provided for them to serve their full terms, protected from a President’s desire to substitute his political allies. Or differently put, the interest at stake is in maintaining Congress’s idea of independent agencies: bodies of specialists balanced along partisan lines, which will make sound judgments precisely because not fully controlled by the White House. . . . [T]his Court [has] to give respect, in balancing equities, to Congress’s expression of that idea in legislation.
| | But if respect is owed to Congress’s expression (and seemingly that of President Obama’s EPA), then the same must be true for President Trump and his DHS. | | The second answer Justice Jackson gave is that a President doesn’t suffer any harm “if what he wants to do is illegal.” That’s true but question begging. The determination of, and comparisons concerning, irreparable harm must be undertaken for each side of the litigation on the assumption that that side is correct on the legal merits. That is why black-letter Remedies law clearly separates the likelihood-of-success-on-the-merits evaluation from the assessment of irreparable harm, and houses these two notions in discrete factors. Justice Jackson in effect smuggles skepticism about the President’s merits argument into consideration of the irreparable harm the public suffers when the implementation of (ostensibly) lawful rules is delayed, and that confounds that clear doctrinal framework. This is akin to saying undocumented individuals suffer no harm when they are threatened with allegedly unconstitutional deportation “if what they want to do—continue to live in the United States—is (ultimately found to be) illegal.” We have to assess their claim of irreparable harm on the assumption that they will win on the merits, and that they thus have a legal entitlement to remain here. And the same is true when we assess the government’s claim that it (and the public) suffer harm when enforcement of (allegedly) legally valid policies is being delayed. | | So much for what I consider unpersuasive critiques of recent interim-docket trends; now let us turn to some attacks on the Court’s recent practices that have a great deal of merit. One is that the Court is acting without adequate briefing and argumentation. It is of course true that “emergency” cases, by their nature, arrive at—and must be resolved by—the Court somewhat quickly. For that reason they necessarily bypass some of the full-blown procedural trappings of the Court’s “regular” docket. But none of that means the Court couldn’t ask for more meaningful (albeit expedited) briefing (including from amici curiae) focused on the precise questions the stay-application papers have raised in the minds of the Justices, and also hold expedited oral arguments, before ruling on the emergency request. The Court did just that last year in Trump v. CASA, the so-called universal-injunction case, and the model there could and should be used more often. | | A second well-founded criticism of the Court these days is that in many emergency cases the Court issues rulings without much if any externally facing explanation. Indeed, if the phrase “shadow docket” is apt in any way, it is because there is not a great deal of transparency of the Court’s ultimate reasoning in granting interim relief. (The term cannot easily be applied to the lack of transparency about the Court’s internal deliberations, because that secrecy characterizes all of the Court’s business, and thus applies with equal force to regular-docket matters. While perhaps the release of internal Court documents ought not to be delayed for as many decades as it usually is, there are powerful reasons to prevent those documents from coming out too close in time to the Court’s actual rulings.) | | The paucity of meaningful explanations to the public is obviously a problem for an institution that needs people to believe it is acting out of principle rather than politics. Some defenders of the Court’s practices may suggest that critics are being unfair: if hurried opinions (and they would have to be hurried because of the need to get them out quickly) are likely to be weak and create their own set of problems, you can’t fault the Court for not wanting to issue them. But that suggestion does not really meet the criticism, for at least two reasons. As I have noted before: | First, there are ways for the Court to write an explanation that helps convince readers that the Justices have thought carefully (or at least as carefully as time constraints permit) about the questions presented and have approached those questions free from partisan slant and in light of existing legal principles, and yet still leave enough flexibility for the Court to backtrack or modify its views in future cases as the Court’s thinking and facts on the ground become clearer. [And] [s]econd, to the extent that the Court [requires] more time to do that than is permitted by the need to give the parties an answer one way or another quickly, the Court could issue its result and then indicate that an opinion (hopefully a reasonably well-crafted one) would follow in the coming months.
| | These two reforms—more (albeit expedited and truncated) pre-decision process, and more post-decision explanation—might go a significant way towards making the “shadow docket” seem less sinister. |
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