In its term that ended last October, the Supreme Court
passed an important milestone that went unnoticed: For the first time, it
decided more cases by secret ballot, and with few signed opinions, than it did
for cases argued in open court.
These decisions, which make up the court’s “shadow
docket,” are a fast-track way to get a decision from the top court. They rarely
include arguments, have limited briefings and have expedited timetables, and
justices infrequently provide explanation of how they voted or to cite legal
precedent.
The Supreme Court’s increased willingness to bypass its
regular process has empowered President Donald Trump at the same time as the
administration has increased use of executive authority. The court has
repeatedly green-lit policies of his that lower courts have blocked — and has
done so with little to no explanation.
These emergency decisions have thrown lower courts’
processes into turmoil and have sometimes directly contradicted longstanding
legal precedent. The outcomes have been consequential: The high court has used
the process to limit federal courts from issuing nationwide injunctions and
diminished Congress’ authority over federal agencies, and it has allowed for
the detention
of American citizens by immigration agents.
ProPublica analyzed over two decades of Supreme Court
rulings, which cover all of the years under Chief Justice John Roberts and go
as far back as the online archives allow.
We found that when the last court term ended, justices had issued 63 orders on
the shadow docket, as opposed to 56 orders on the more traditional merits
docket — where the court hears oral arguments scheduled months in advance and
the justices issue signed opinions. Legal scholars and court watchers were shocked by our
finding. They told ProPublica it’s likely the first time in modern history that
so many consequential decisions were made in secret by its nine members.
“The
patterns show a court going out of its way to enable Trump,” said Stephen
Vladeck, a law professor at Georgetown University and a Supreme Court analyst.
He said that our findings reinforce the appearance that the justices are voting
on their political preferences. “That’s the real blow to the court’s
credibility,” he said. Representatives from the Supreme Court did not respond
to a detailed list of questions.
In a statement, a spokesperson for the White House wrote,
“President Trump has faced a historically unprecedented number of injunctions
by liberal lower court judges, the same judges who would rather push their own
policy schemes and undermine the Administration’s lawful agenda. President
Trump will not stop implementing the America First initiatives on which he was
elected.”
For the First Time in Two Decades, Decisions on the
Supreme Court’s Shadow Docket Outnumber the Merits Docket.
There are two
ways to get a decision from the Supreme Court. One is to exhaust your appeals
to lower courts and ask to argue your case in front of the high court. The
justices determine whether to take the case on, and if they do, lawyers argue
their case in front of them. The other is to petition the justices directly via
the emergency docket — to freeze a lower court ruling or government policy
while the case goes through appeal.
The appeals to the emergency docket have long outnumbered
those to the merits docket, but most are procedural requests or requests to
stay execution for capital offenses. When those are removed, what’s left is
known as the shadow docket — cases that seek to skip the usual order of things
and ask for a quick ruling from the court’s justices.
The modern shadow docket was born in 2016 when the
Supreme Court issued an emergency stay against President Barack Obama’s Clean
Power Plan, experts say. Papers obtained
by The New York Times show that liberal justices at the time urged
Roberts not to decide the case on an emergency basis because it broke with
longtime precedent. The conservative justices, meanwhile, forcefully argued
that the president’s plan would eventually be overturned by the court anyway
and that it would put too much of a burden on the energy industry.
Driven by its numerous
losses in lower courts, the current Trump administration appeals to
the emergency docket significantly more often than previous administrations,
and the court has increasingly agreed to take quick action on its appeals. The Obama and George W. Bush administrations together
filed just eight petitions in 16 years. The Trump administration filed 32 in
2025 alone, an analysis by the Brennan
Center for Justice found.
The increased willingness of the Roberts court to
intervene on Trump’s behalf — as well as in other issues that favor
conservatives and Trump allies — has upended American life, said Donald Ayer, a
former deputy solicitor general and deputy attorney general who served under
the Reagan and George H.W. Bush administrations. “On many subjects of real
importance to our future, they’ve demolished what used to be the law,” he said.
Public scrutiny of the shadow docket ramped up in
September 2021 after the Supreme Court used it to issue a one-paragraph,
unsigned opinion that further rolled back abortion rights established
in the 1973 Roe v. Wade ruling. In the order, the court refused to block Texas’
Senate Bill 8, the “Heartbeat Act,” which banned abortion after an embryo’s
cardiac activity is detectable, typically at six weeks of pregnancy and before
many people know they are pregnant. Protests erupted nationwide, and the Senate
held a hearing on the shadow docket.
In an unusual public acknowledgement, Justice Elena Kagan
referenced the shadow docket by name in her scathing dissent, accusing the
majority of green-lighting a “patently unconstitutional law” with only a
cursory review in less than 72 hours. “In all these ways, the majority’s
decision is emblematic of too much of this Court’s shadow docket decision making
— which every day becomes more unreasoned, inconsistent, and impossible to
defend,” Kagan wrote.
That an opinion was even issued and that four of the
justices signed their names to it was uncommon. On the shadow docket, justices
do not have to make their votes known. In rare cases, their votes are revealed
in terse indications that they grant or deny the application, or even more
rarely, as an opinion. We found that just 17% of votes cast had any sort of
public record of a vote or opinion.
Responding to public criticism, Justice Samuel Alito
contended that the court isn’t to blame for the rise in shadow docket cases.
“We do not file these emergency applications,” he
said. “Parties file them.” The debate has continued. “We cannot expect the public to
have faith in our judicial system if, without clear explanation, we
consistently green-light harmful acts that do real damage,” Justice Ketanji
Brown Jackson said during an April speech on the shadow docket at Yale Law
School.
Until this past Supreme Court term, emergency
applications fluctuated year to year but showed no clear upward trend. The
applications are given first to a single justice, who decides if a case is
worth referring to the full court. In recent years, justices have referred more
of such appeals for a review and vote by the full court. Last term, when there
were both more cases and more referrals to the full court, the appeals to the
shadow docket finally overtook those to the merits docket.
Emergency Applications Referred for a Full Court Vote
Have Risen Sharply.
Total applications have varied over the last two decades,
with a surge last term under President Donald Trump. The cases were
consequential. On June 23, 2025, after a lower court had ruled that eight men
being deported to South Sudan should have due process, the Supreme Court
intervened after a request from the administration to stop that order. The men
were deported. The majority didn’t issue an opinion justifying its ruling.
Three months later, the Supreme Court voted to allow
immigration agents to stop people based on racial or ethnic characteristics
while still-ongoing litigation against it proceeded. To justify the decision,
Justice Brett Kavanaugh wrote a rare shadow docket opinion that people who were
in the country legally would be “free to go after the brief encounter.” These
became known as “Kavanaugh stops.”
Last year, ProPublica found more than 170
citizens who had been stopped and detained by ICE agents. The more than 50
Americans held even after agents learned of their citizenship were almost all
Latino.
And in May, while an election in Louisiana was already
underway, the justices allowed the state to immediately redraw its electoral
map, removing one of the two majority-Black voting districts. Louisiana can now
use that map for the 2026 midterms as part of a nationwide redistricting battle
for control of the House of Representatives — an effort touched off by Trump’s
call for Republican-led states to create more safe seats for themselves.
Roberts once signed on to a Kagan
dissent that assailed the shadow docket. But our analysis found that
he has referred more substantive cases for a vote by the full court than any
other justice, going from just one in the 2005 term when he joined the court to
nearly half of all referrals in the last term.
There is an additional difference between the shadow
docket and the merits docket. After the court holds public argument, the
justices’ ultimate merits decisions are closely watched and extensively covered
by the press. The summer’s “decision season,” when the final and most
significant rulings come down, has a predictable cadence that ends when the
justices go on summer recess. Not so with the shadow docket. Increasingly, the
justices are making big decisions after they’ve issued their final merits docket
decision, when public attention has waned.
A group of Democrats led by Rep. Jamie Raskin, D-Md.,
have sponsored
legislation to make the shadow docket more transparent. Raskin told
ProPublica that the court’s legitimacy has fallen with every significant
decision made without “real opinions or analysis.”
“Lower federal courts have been deciding against the
Trump administration in an overwhelming majority of cases with weighty and
well-reasoned opinions,” Raskin said in a written statement. “Yet when things
get to the twilight zone of the shadow docket, the Supreme Court is overturning
100-page opinions with a flippant sentence or two.” He added, “The result is a
body that looks less like a Supreme Court and more like a Royal Court rubber
stamping the madness and folly of the Trump Administration.”
“The jurisprudence of the Roberts Court today is as murky
as the green algae water in the Reflecting Pool.”
How We Reported This Story:
To compare the number of cases on the Supreme Court’s
shadow docket to the traditional merits docket, we compared emergency
applications listed on the court’s online docket search with
counts of decisions compiled in Penn State’s Supreme Court Database (Version 2025
Release 01). For the merits docket, we counted only signed decisions in argued
cases, the typical format for those rulings.
The court’s online docket goes back to the year 2000, but
our analysis looks at Supreme Court terms from October 2003 to October 2025,
where emergency applications are easily identified by the letter “A” in their
docket number.
We identified more than 27,000 emergency applications
during that period, including thousands of requests that are not commonly
understood to be a part of the shadow docket. Most appeals to the emergency
docket are the type of requests that were traditionally handled there:
procedural requests, such as extending the time to file, and requests to stay
execution for capital offenses. The remainder are the focus of our reporting.
Substantive Shadow Docket Cases Are a Small Fraction
of All Emergency Applications.
Note: The COVID-19 lockdown impacted applications for
filing relief in the 2020-21 term. We defined a substantive application
on the shadow docket as any filing where the full court was asked to intervene
in the traditional appeals process, such as staying a lower court’s
order.
Most of the cases we excluded are decided by just one
justice, each of whom oversees one or more federal circuits and has the power
to refer filings to the wider court. When the cases are referred to the full
court, they are the subject of a vote by the justices. We ran our approach by
multiple experts; all of whom found it sound.
A filer can appeal to another justice if their
application is denied. The next justice to receive the application always
refers it to the full court. We did not include these renewed applications
because our analysis found the court has never granted one.
The court has labeled capital punishment cases only since
the October 2017 term. To identify them prior to that, we flagged applications
for stays of execution. We then manually reviewed every case referred to the
full court. For applications decided by a single justice, we used an AI model
to flag potential capital cases by examining the parties on the application and
the relief requested. The model flagged over 60 possible capital cases, and
those were manually reviewed. Despite our effort, it is possible some capital
cases may still be included in our final tallies before the 2017 term.
Although rulings on the shadow docket are typically
unsigned and do not include vote breakdowns, we were able to identify how a
justice voted in some cases. The analysis is based on either the opinions
issued by the justices, most of which are dissenting opinions, or if the
justice indicated they would have granted or denied. In some decisions, the
justices issued a statement not attached to either a grant or denial. We did
not record these as votes.
- ProPublica
-Ken B. Morales/ Nick McMillan contributed
data reporting.
