At this point in time, the United States is probably the world’s most powerful nation! At least in terms of military might. And also in terms of financial power and leadership. Arguably, therefore, the President of the United States is the most powerful single person in the world. A person who in theory has no time to dillydally in his decision-making.
And then there is the United States Supreme Court! It has for decades been one of the world’s great deliberative bodies. A typical legal case, winding its way through at least two levels of lower courts, and then to the Supreme Court, could typically require in excess of a year, and very often two years, if not more, to wend its way through the American judicial process – at least at the federal level.
But now, in the past few years, our Supreme Court has evidently grown impatient with its own deliberative processes. Beginning in the first Trump Term; and then from time to time under the Biden Administration; and now with notable regularity if not abandon, at the beginning of the second Trump Term, the Supreme Court has found a new toy. Knowledgeable observers have coined a catchy phrase for this: the Courts’s “SHADOW DOCKET.”
In this article I will present a quick overview of these developments and of their troubling implications for legal process and judicial probity in the United States. And in addition, it must be said, the particular implications of the “Shadow Docket” for weakening protection of at least some of the remaining guardrails against Donald Trump’s notoriously aggressive attempts – especially in his second term – to remake (or is it destroy?) U.S politics and law as we know them.
Normal Procedure
In a normal case destined for the Supreme Court – even one with potentially rapid implications – there is an established procedure for bringing cases to the Court. Pleadings and related motions are initially filed in the lowest state or federal court. For simplicity, we can focus on the federal court process. A federal case is initially filed in a United States District Court for the potentially-applicable District. After filings, briefing and typically oral argument, the Court takes the matter under advisement and thereafter issues its opinion.
The parties then have an opportunity to appeal from that opinion to the appropriate Circuit Court of Appeals. Such appeals to the Circuit Courts are typically taken as a matter of right, rather than only at the discretion of the Court, although discretion may be exercised as to timing, depending on a Fridays what is known on shadow docket Friday in the legal formation by the Supreme Court on the shadow docket? What did the three dissenting justices say about Venezuelan migrants on October 3, 2025 I the Of factors. But even appeals requiring unusual expedition would still normally take some matter of weeks – if not months – to ultimately fully brief, argue and have decided.
Then – excluding for the moment the relatively rare case of an application for “en banc” hearing by the full Circuit Court (as opposed to a three-judge panel) – there would be briefing of a petition for (discretionary) “certiorari” to the Supreme Court and then – if a full hearing is granted by the Court – with a further period for briefing on the merits (opening and reply briefs) after which a hearing is ultimately scheduled by the Court, the case is argued and sometime thereafter decided by the Court (a time which on average would be as long as some period of months).
The timing of cases most recently handled on the “Shadow Docket” stands in stark contrast to the foregoing traditional, deliberative process. Although even the shadow docket may not produce final opinions, a description of their operation will show how most if not all of the foregoing time periods are truncated if not eliminated.
Analysis of the Court’s Recent, Increasingly Troubling, “Shadow Docket” Actions
Just this past Friday afternoon, October 2, the Court issued its latest “shadow docket” ruling. That ruling encapsulates many of the most troubling aspects of the Court’s ongoing abuse of the shadow docket. Indeed, in that latest action, the Court’s 6 to 3 majority boldly and unashamedly denies in the case – for the second time on the shadow docket, in less than 5 months – vital procedural rights normally due to all U.S. litigants.
The case (X versus Y) first arrived on the Supreme Court’s shadow docket in March of this year. At that time, the government was appealing from a San Francisco District Court’s Order enjoining the Department of Homeland Security from removing legal protections, accorded under the federal “Temporary Protected Status” program (initiated by the Biden administration), for hundreds of thousands of Venezuelan nationals. The government appealed, and on its shadow docket, on May 19, a 6 to 3 majority of the Supreme Court – without full briefing, or argument, or full formal opinion – issued a “temporary” order blocking the lower court‘s ruling.
On remand, the District Court proceeded to further considered the evidence that had been subsequently submitted by both sides, and issued a “final decision,” on September 5. In his decision he rejected any contention that he was barred – by the Supreme Court’s shadow docket order – from adjudicating the case on the merits. And he therefore entered a final judgment granting relief based on his finding that the Secretary of Homeland Security had “acted unlawfully in ending the 2023 Protected Status designation and its extension” and that its termination was wrongfully “predicated on negative stereotypes about Venezuelan migrants.”
On the governments’ appeal, the Court of Appeals declined to take any action and a renewed application to the Supreme Court inevitably followed. Once again, without full briefing or argument, the Justices (again 6 to 3) put the District Judge’s ruling on hold. After no more than a brief recitation of the case’s history, but court “explain” that: “although the posture of the case has changed, the parties’ legal arguments and relative harms generally have not.”
The same three justices again dissented. But only Justice Jackson filed a written dissent. In impassioned language, Jackson complained that the court majority had only used its “equitable power) but not [its] opinion writing capacity) to allow this Administration to disrupt as many lives as possible as quickly as possible.” And commenting on the problem of the Court’s growing “shadow docket,” Justice Jackson concluded: “[b]ecause, respectfully, I cannot abide our repeated, gratuitous, and harmful of interference with cases pending in the lower courts while lives hang in the balance, I dissent.”
And so, in sum, the solid Trump majority on the Court gave short shrift – indeed it barely gave consideration to – both of the entirely appropriate efforts by the District Court to examine the underlying record in its consideration of the merits of the case. Similarly, the considered judgment of the Biden Administration, was entirely shunted to the side with barely the blink of an eye among the 6-judge Trump majority. And oh, by the way, it should not be forgotten that all of this back of the hand approach by the Trump majority threatens to impose an obvious, likely impact on hundreds of thousands of Venezuelan immigrants to the United States whose interests had – before arrival of the Trump Administration and the Trump Court – been given due – and indeed the traditionally careful – consideration accorded to such matters before the highly questionable effects of Supreme Court’s expensive and expanding “Shadow Docket.”
A quick rundown of some of the other key “Shadow Docket” determinations, by the Trump Supreme Court, will further illustrate the foregoing points.
Just the previous Friday, September 26, the Trump Court handed another impactful victory on the shadow docket to the Trump Administration when it allowed the Administration – without full hearing – to withhold $4,000,000,000 in spending on foreign aid that had been duly appropriated by Congress. The brief order – on the shadow docket – held that the government had made a “sufficient showing” to support the impoundment, despite congresses traditional power of the purse. In that regard, without full briefing, the Trump majority noted that “the asserted harms to the Executive’s conduct of foreign affairs appear to outweigh the potential harm” to the plaintiffs! That is surely a quite a weighty judgment based solely on the skimpy shadow docket record before The Court.
Actually, a computation of the Court’s recent shadow docket rulings has determined that the Trump 6 – 3 has granted Trump Administration requests to block lower court rulings in more than 70% of cases brought by the Administration that were decided via the shadow docket.
Issues in those shadow docket cases in favor of the Administration were decided on a chilling array of extraordinarily weighty topics, including: Trump’s plan to rescind teacher training grants; Trump’s plan to deport persons under the Alien Enemies Act; Trump’s efforts to fire probationary federal employees; Trump’s firing of independent agency members; Trump’s plan to end birthright citizenship; Trump’s proposed transgender military ban; upholding DOGE access to sensitive Social Security Administration data; ending certain protections for upwards of 500,000 immigrants (7-2); defeating application under FOIA seeking access to DOGE documents; upholding Trump Administration plans to deport immigrants to third-party countries; challenges to the Trump administration’s firing of workers and reorganizing agencies; upholding widespread layoffs at the Department of Education; upholding Trump unilateral filings of Consumer Product Safety Administration members; defeats challenge to immigration stops in Los Angeles; upholds Trump’s firing of members of the FTC; upholding devastating cuts to USAID funding;
And so, in conclusion, it bears repeating once again, that all of the foregoing decisions were made on the shadow docket – without full argument or consideration by the lower courts or the Supreme Court!
So perhaps that will give readers a sense of the startling impact of the shadow docket in severely truncating the Supreme Court’s normally deliberative rulings only upon full hearing, briefing and argument!
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