US Supreme Court supercharges its 'shadow docket,' dividing the justices

Highlights:

• Growing number of cases decided on an emergency basis
• Justices squabble over how to handle cases in this manner
• Court has backed Trump in many emergency docket rulings

When the US Supreme Court issued its ruling defending the Federal Reserve from political interference, it not only prevented President Donald Trump from firing one of the central bank's governors, it also highlighted growing unease among the justices about the use of their ever-expanding emergency docket.

Three of the four conservative justices who dissented in Monday's ruling involving the Fed's Lisa Cook also criticized the five justices who were in the majority for making such a consequential decision using the court's procedure designed for emergencies — and short-circuiting lower courts in ​the process.

That prompted Chief Justice John Roberts to defend the landmark action using this pathway in the Cook case as a matter of "prudence" on which people can disagree. Roberts authored the 5-4 ruling, joined by fellow conservative Justice Brett Kavanaugh and the court's three liberal justices.

Critics for years ‌have raised concerns about the court's increasing willingness to decide major issues using the emergency docket — also called the "shadow docket" or "interim docket" — saying it lacks transparency and accountability to the public, and gives short shrift to complex and high-stakes legal disputes.

This docket lets the justices render decisions before lower courts have decided the legal merits of a case, generally bypassing the Supreme Court's regular procedures that involve extensive briefing, oral arguments, months of deliberation and lengthy written rulings. Emergency orders typically are made rapidly and often provide no explanation or rationale.

Now another concern is emerging. As more and more emergency decisions usher in vast changes to the law, and even alter the court's own precedents, the justices appear divided over just how powerful this process is becoming, and how to wield it appropriately.

The justices completed their latest nine-month term on Tuesday ​and entered a summer recess. Their next term begins in October.

A  telling response

"What I find really telling is that Roberts felt he had to respond to it. He didn't have to. The opinion could have just decided the case," said Bradley University law professor Taraleigh Davis, an expert on the emergency docket, referring ​to the complaint by the dissenting justices.

"He felt the pressure of the complaint enough to put a principle on paper for the first time," Davis added. "And the principle he lands on, that it's a matter of prudence, is, honestly, pretty honest about the ⁠fact that there is no rule. There is no formula."

Formerly used only rarely, the court in recent years has transformed the emergency docket into a powerful force in American life, employing it to especially dramatic effect since Trump returned to office in January 2025.

The court, with its 6-3 conservative majority, backed Trump in numerous emergency decisions that let him ​implement contentious policies impeded by lower courts while legal challenges continued to play out.

Its emergency decisions have let Trump fire federal employees, take control of independent agencies, ban transgender people from the military, proceed with aggressive immigration raids and deport migrants to countries where they have no ties, among other actions.

The conservative justices have wielded this power in multiple ways, largely siding ​with Trump, a Reuters analysis has shown.

Among the emergency actions during the latest term that court observers argue revised existing law, the justices allowed states to redraw the boundaries of U.S. House of Representatives districts in the hopes of benefiting Republicans in elections and weighed in on the rights of parents of transgender children.

The Rebecca slaughter case

Using the emergency docket, the court also boosted Trump's power to fire, independent federal regulators, allowing him last September to remove Democratic Federal Trade Commission member Rebecca Slaughter. It similarly let Trump fire other agency officials during its previous term.

Dissenting in several of those decisions, liberal Justice Elena Kagan said a 1935 precedent of the court that had insulated federal regulators from such at-will firings by a president should have barred Trump's actions. Kagan asserted that the emergency docket should not be used to overrule ​precedent or revise existing law.

On Monday, the court overruled that precedent — a decision that expands presidential powers — in a 6-3 ruling formally affirming the legality of Trump's move to fire Slaughter.

It issued its ruling on the Fed's Cook on the same day. The court denied Trump's emergency request that it block decisions by lower courts preventing him from removing Cook ​based on unproven mortgage fraud allegations that she denies. But the court made clear that its decision did not rule out the possibility of Trump prevailing in his efforts to remove Cook in the future after the allegations are vetted.

No other president since the Fed's founding in 1913 ever tried to fire a Fed official. Trump's attempt threatened to undermine the Fed's cherished independence.

Justice ‌Samuel Alito, joined by ⁠fellow conservative Justice Neil Gorsuch, wrote in dissent that the court should not have issued such a comprehensive ruling on Cook given that the case was at an early stage and that novel legal issues were involved. Alito noted that the dispute reached the Supreme Court on the emergency docket just 21 days after the litigation began last year.

Those problems "counseled in favor of a light touch by this court," Alito wrote.

Echoing this criticism, conservative Justice Amy Coney Barrett wrote in dissent, "While a modest approach would have been appropriate, the court chooses to go big. Its opinion sets precedent on a series of important issues, with implications that extend well beyond this case."

Roberts responded to the criticism, writing: "How much to say on our interim docket ... is not reducible to any mechanical formula; it is ultimately a matter of prudence, upon which reasonable minds can (and often do) disagree."

Liberal Justice Ketanji Brown Jackson wrote that unlike in other consequential emergency-docket cases, the court spent more time considering this one and took the rare step of hearing oral arguments.

Parental rights case

The complaints by the conservative dissenters mirrored ​those made by two of the court's liberal justices in another emergency docket decision called ​Mirabelli v. Bonta in March.

In that case, the court blocked a series of ⁠California laws that can limit the sharing of information with parents about the gender identity of transgender public school students without the child's permission, siding with Christian parents who challenged these protections.

The ruling extended protections under the U.S. Constitution's 14th Amendment right to due process, recognizing the right of parents to receive this information.

"These policies likely violate parents' rights to direct the upbringing and education of their children," the ruling stated.

In dissent, Kagan, joined by fellow liberal Justice Ketanji Brown Jackson, criticized the "terse, tonally dismissive ruling designed to conclusively resolve ​the dispute." Kagan wrote that it will be seen as a judgment on the legal merits, not an interim order, effecting a major development in U.S. law on a politically charged issue.

"Today's decision shows, not for the first time, how our ​emergency docket can malfunction," Kagan wrote.

'Broader problems'

"The problems with ⁠Mirabelli are illustrative of the broader problems of the court's use of its emergency docket to decide significant questions of constitutional law," Yale Law School professor Douglas NeJaime said.

"Parties are denied the opportunity to fully brief and argue a case, lower courts are denied the opportunity to fully consider the merits in the first instance, and the law changes in ways that are not always clear and that leave state actors, lower courts, and ordinary Americans with an insufficient basis on which to move forward," NeJaime said.

The rulings in the Cook and Mirabelli cases reflect the court's ongoing dilemma over how much explanation the justices should attach to emergency orders. Most emergency actions are bare-bones, limited to deciding a policy's status — enforceable or not — pending a challenge to ⁠its legality.

Barrett, part of ​the majority in the Mirabelli case, defended the ruling and the decision to offer legal rationale.

"Interim applications routinely require the court to balance the lock-in risk of saying too much against the transparency cost of ​saying too little," Barrett wrote in a separate opinion.

Roberts, meanwhile, in the Cook ruling reminded Barrett and the other dissenters in that case of her statement in the Mirabelli case.

"It's not surprising there are internal disagreements on this, as it's a hard issue," George Mason University law professor Ilya Somin said. "It can be problematic to both say too much or to say too little."

Somin said the court cannot easily fix the problem.

"I would ​lean towards giving more explanation for decisions rather than less, and only using the shadow docket in cases where there is a very compelling reason," Somin said. "Of course, what counts as a compelling reason is likely to divide people with different ideologies and judicial philosophies."