How the judicial branch is using the shadow docket to reshape democracy
On September 8th, 2025, the United States Supreme Court made a decision that changed the trajectory of immigration law. Despite a lower court’s initial ruling and historical precedent from a 1975 Supreme Court case, the Court ruled that immigration officers may search and seize an individual based on characteristics like accents, perceived ethnicity, and employment. Noem v. Vasquez Perdomo, which redefined numerous previously assumed principles of U.S. law, including the Fourth Amendment, received neither the typical argumentation required to merit cases nor the typical briefings. Despite this decision and the effects that rippled across cities, the Supreme Court was not required to, and therefore did not, clarify the implications of their ruling apart from a short and insufficient report, leading to unbounded actions by Immigration and Customs Enforcement (ICE). This case is one of many examples of how the current Supreme Court has used the shadow docket to undermine the transparency and accountability that stand at the core of the judicial system.
The shadow docket, more formally known as the emergency docket, is one of the ways in which the Supreme Court can accept cases. The shadow docket was created by the Judiciary Act of 1925, which gave the court more autonomy over the number of cases and which cases they would address. At the time, the court was three years behind in addressing its case load. This additional autonomy was supposed to expedite the judicial process. It also allowed them to decide how to address emergency cases. Contrary to the merits docket, the shadow docket does not require the same procedures typically used in landmark cases. Shadow docket cases do not require lengthy argumentation, briefings, or explanations. While shadow docket cases do not have the ability to create new precedent, they can be used to undermine past precedent, raising questions about the finality of those decisions.
The problem with the shadow docket is not the docket itself, but rather its excessive and expanding use in the past year. In a speech made at the University of Notre Dame, Samuel Alito, one of the court’s conservative-leaning justices, claimed that the scrutiny over the shadow docket and the general claim that it was “sneaky and dangerous” was “misleading.” This is true. The shadow docket is not innately “sneaky” or “dangerous.” In truly urgent circumstances, like capital punishment, the shadow docket can be both useful and necessary. In Murphy v. Collier, the Court did not allow for the capital punishment of a man until he could have his Buddhist advisor in the chambers with him. In another 1973 shadow docket case, the Supreme Court ruled to stop Nixon’s bombing of Cambodia. In these limited contexts, it prevents irreversible harm.
However, Justice Alito failed to address the features that make the shadow docket indispensable in urgent situations, which also make it dangerous when applied broadly. Recently, the use of this legal apparatus designated for emergencies has increased. From January to November of 2025, the shadow docket was used 27 times in cases involving the executive branch. In comparison, between 2000 and 2016, the Supreme Court relied on the shadow docket only eight times. This increase shows not only the excessive and often ill-suited use of the term ‘emergency’ to justify expedited rulings but also how the Court has become complicit in normalizing this practice. Apart from supporting the Department of Homeland Security and its immigration practices, the shadow docket has also affected Department of Government Efficiency (DOGE) actions, government spending, and LGBTQ military personnel rulings. What was once an exception has become a routine measure to resolve major legal and political questions.
While this alarming trend can be attributed to many political motives, as leaders push the boundaries of their power, it falls upon the justice system to limit this unyielding political expansion. However, this principle has proven to be largely untrue for both conservative and progressive justices. Justice Alito has ruled in Trump’s favor 95 percent of the time, a figure that starkly contrasts the 18 percent of Alito’s rulings that were in former President Joe Biden’s favor. On the contrary, decisions by Justice Ketanji Brown Jackson and Justice Sonia Sotomayor reflect a similar margin in favor of liberal perspectives. These partisan biases prove concerning when it comes to cases of executive expansion, as in shadow docket cases, with justices almost always favoring their ideological peers. Moreover, because shadow docket cases do not require any written justification or significant oral arguments or briefing, justices are even more likely to adhere to their ideological base, as they do not have to justify their decision.
Apart from the larger problem of eroding public trust, the shadow docket poses an impervious obstacle to legal precedent. In a 2020 case, Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court used a shadow docket and the First Amendment right to protect religious institutions from Covid-19 regulations. Ninth Circuit Judge Milan D. Smith, Jr. claimed that this case served as a “seismic shift in Free Exercise law.” Yet, little justification was provided for their ruling. The precedent from this case was used in other cases regarding the Covid-19 restrictions despite significant differences from the original case. Similarly, as in Noem v. Vasquez Perdomo, using the shadow docket to address cases reliant on historical precedents leads to inconsistencies. While the shadow docket does not have the power to change precedent because of the finality of its term, often only one to two years, it does question the basis and weight of the original ruling. Justice Elena Kagan wrote in a recent shadow docket case that “our emergency docket should never be used, as it has been this year, to permit what our own precedent bars.” Using expedited briefing and oral arguments to justify undermining historical precedent jeopardizes the sanctity of the original court case and the legitimacy of the new one. The shadow docket allows for this murky legal precedent on consequential cases.
Through the shadow docket, the Court has issued consequential rulings affecting legislation on water pollution, firing federal workers, gerrymandering, and immigration policy. The implications of these issues reach millions of people. Yet, for those seeking to understand the Court’s justification for these pivotal decisions, they are provided with an unsigned, short order. This anonymity makes it difficult to find responsibility in these decisions.
This lack of responsibility continues, as ICE officials are once again under scrutiny for the reckless nature of their operations. While politicians should be blamed for ICE’s conduct, ultimately, it falls on the Supreme Court to limit the unyielding power grabs of the executive and legislative branches.
Through the shadow docket, the Supreme Court has increasingly allowed politicians to weaken constitutional protections without accountability. Because these decisions are issued with little explanation or transparency, they evade meaningful scrutiny of influential decisions. A democracy cannot survive when its highest court uses secrecy rather than justice to govern.
