President Donald Trump is securing significant legal victories through the Supreme Court’s emergency docket, often referred to as the “shadow docket,” even as he faces increasing opposition from lawmakers and voters on other fronts. On Tuesday, the Court issued an unsigned emergency order permitting the resumption of deportations to third countries, temporarily overriding a lower court injunction. This followed a similar ruling days earlier that allowed the use of a Department of Homeland Security database to verify voter eligibility for the upcoming November midterms.
In both instances, the three liberal justices publicly dissented, while the orders lacked written explanations or vote counts. These recent decisions are part of a broader trend in which the Trump administration has filed emergency petitions at a rate surpassing any recent predecessor, seeking to implement its second-term agenda despite ongoing legal challenges.
On Monday, the administration submitted another emergency request, asking the Court to allow restrictions on gender-affirming care for transgender inmates in federal prisons after a district judge in Washington, D.C., blocked the policy. Legal experts note that the Court has become far more accommodating to these types of requests compared to previous eras, effectively reducing legal constraints on executive actions.
“The Supreme Court has changed the rules for when the executive branch can obtain this kind of emergency relief in ways that it is completely different from what they’ve done in the past,” said Carolyn Shapiro, founder of the Chicago-Kent College of Law’s Institute on the Supreme Court. “The Trump Administration has taken that invitation.”
The shadow docket allows the Court to expedite reviews of ongoing cases, potentially overturning lower court decisions on executive orders without the extensive deliberation, oral arguments, or detailed written rationale characteristic of the merits docket. While applicants traditionally must demonstrate irreparable harm or a public interest benefit, critics argue the Court has frequently approved Trump’s requests without satisfying these standards.
Kate Shaw, a law professor at the University of Pennsylvania, argued that it is rarely a genuine emergency for the executive branch to be stopped by litigation. “And yet again and again, the court has concluded or appeared to conclude that the executive is experiencing this irreparable harm, such that the policy should be put into effect—regardless of how flagrantly unlawful lower courts have found the proposed policy to be,” Shaw said.
Shapiro highlighted that the Supreme Court often disregards the factual findings and evidentiary hearings conducted by lower courts. She contends this dynamic disenfranchises lower judicial authority and empowers the executive branch, allowing policies that may be illegal to proceed without judicial pushback.
The volume of petitions illustrates the shift in strategy. President Obama filed three applications over two terms, while President Biden filed 19. Trump filed 41 during his first term and has already matched that total in his second. Since returning to office last January, the Court has issued 32 shadow docket rulings regarding the Trump administration, with 24 favoring the government.
Recent successes have enabled the administration to advance policies related to immigration enforcement, government spending cuts, and construction projects. In September alone, beyond the deportation and voter verification rulings, the Court allowed the temporary withholding of $4 billion in foreign aid, ruling that harms to foreign affairs conduct outweighed potential damage to aid recipients. However, the Court did strike down one administration effort in September, declining to lift restrictions on mail-in ballots before the midterms.
A Justice Department official defended the strategy, stating that the department has a strong record on emergency applications and that lower courts frequently block lawful policies without justification. “Without timely relief, any administration’s priorities could be tied up in litigation for years,” the official told TIME. “Asking the Supreme Court to step in when it is warranted does not undermine the judicial system. It is how the system is designed to work.”
Critics, including the Court’s liberal justices and various legal scholars, have raised alarms about the practice. Justice Ketanji Brown Jackson warned last week that the modern stay practices could have a “disruptive and potentially corrosive effect,” turning the emergency docket into an “end-run around the standard review process.” Justices Sonia Sotomayor and Elena Kagan have also voiced criticism, as has Justice Neil Gorsuch, who recently expressed concern about the “perpetual emergency” mindset expanding executive power at the expense of democracy.
Lower court judges have similarly spoken out. Judge James Wynn of the 4th U.S. Circuit Court of Appeals criticized the opacity of unexplained orders, and other federal judges have described the Supreme Court’s conduct as “inexcusable.” Shapiro characterized the trend as an “extremely dangerous precedent,” noting a lack of willingness in recent decades to sanction repeated defiance of the rule of law.
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