The shadow docket of the Supreme Court involves decisions by the Supreme Court majority without written briefs submitted by the affected parties, without oral argument by those parties, without questions from the Supreme Court in response, and without written opinions by the Supreme Court to explain the reason(s) for the Court’s decisions. In other words, the Supreme Court’s shadow docket lacks the transparency and accountability expected of legitimate courts that decide matters with integrity and clarity. Deviating from venerable tradition and constitutional norms, the Supreme Court majority now increasingly chooses to use the shadow docket to decide some of the most challenging and contentious issues facing the nation.

As important context, district courts and courts of appeals around the country have repeatedly ruled that actions by the current Federal administration are illegal or likely illegal such that injunctions must be imposed to prevent further harm. Notably, these courts have so ruled even when the current President appointed the presiding judges. In response, the Supreme Court majority has used the shadow docket to overrule numerous courts of appeals and district courts – evidently doing so contrary to the governing law.

Perhaps this reliance on the shadow docket by the Supreme Court majority should not be surprising because all but one of those Supreme Court Justices were appointed by a President who lost the popular vote during the relevant Presidential election. The current President appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett after losing the popular vote in 2016, and former President George W. Bush appointed Justices John Roberts and Samuel Alito after losing the popular vote in 2000.

According to a comprehensive analysis by the Brennan Center for Justice at New York University School of Law, examples of the Supreme Court majority’s recent use of the shadow docket that threatens key workplace protections and civil rights include the following:

• Trump v. Slaughter, allowing the termination of law enforcement agency leaders without cause;
• McMahon v. New York, allowing the mass termination of public servants despite civil service job protections;
• U.S. v. Shilling, allowing the mass termination of transgender service members from their longstanding military positions; and
• Noem v. Perdomo, allowing racial profiling when deciding whether to detain and arrest people without evidence of criminal conduct.

The dissent in Slaughter written by Justice Elena Kagan describes concisely and cogently why the Supreme Court majority’s escalating use of the shadow docket jeopardizes the rule of law specifically and democracy generally: “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”