What is the shadow docket?

The "shadow docket" refers to the set of expedited cases that the Supreme Court agrees to review outside of its standard "merits" docket. Shadow docket cases don't receive the full briefings and standard arguments of cases on the official docket. Critically, shadow docket decisions are not published in the form of a lengthy opinion of the Court justifying the decision. They produce succinct orders, generally issued without legal justification.  And while these cases typically receive less attention than cases on the merits docket, they can have significant implications for the law and for individual litigants.

Journalist Dahlia Lithwick explains the origins of the term "shadow docket" and how it has come to refer to the growing number of emergency orders by the Court. Emergency orders of the Court traditionally came in response to important and time-sensitive issues (e.g. an imminent execution) that could not wait until the next term of the Court or which are so urgent that the measured review process would not be feasible. According to Lithwick and scholars such as Prof. Stephen Vladick (Texas Law), the Supreme Court's shadow docket is today more expansive than ever and is now raising questions about the precedent these cases set and the role of the high court more broadly.

Dahlia Lithwick is a contributing editor at Newsweek and senior editor at Slate covering law and the courts. She is the host of the Slate podcast Amicus and the author of the book Lady Justice, Women, the Law, and the Battle to Save America (Penguin Press, 2022).