Most people know the Supreme Court through the 60 or so signed opinions it hands down each term after full briefing and oral argument. But much of the Court's power is exercised through unsigned, often unexplained orders: decisions on emergency applications to block or reinstate laws and policies, on whether to hear cases at all, and on how and when to hear them. University of Chicago law professor William Baude called this the "shadow docket," and over the past decade it has become the forum for many of the Court's most consequential and contested rulings, on immigration, elections, COVID restrictions, abortion, and the death penalty.
In this TalksOnLaw interview, recorded in early 2023, Joel Cohen speaks with Stephen Vladeck, then a professor at the University of Texas School of Law and now the Agnes Williams Sesquicentennial Professor of Federal Courts at Georgetown University Law Center, CNN's Supreme Court analyst, and author of the New York Times bestseller The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Vladeck explains what the shadow docket is, how it grew, and why he believes its rise threatens the Court's legitimacy.
What the Shadow Docket Is
Vladeck explains that the shadow docket is broader than emergency orders: it includes everything the Court does outside its signed merits opinions, from denying certiorari to setting its calendar. He traces how Congress gave the Court control of its own docket in 1891, 1925, and 1988, and why that discretion is a source of power, and he shows how orders can matter as much as opinions: through a series of orders in 2014 and 2015, including its refusal to hear appeals from five states, the Court allowed same-sex marriage in more states than Obergefell v. Hodges later did.
What Changed
Emergency applications are as old as the Court, from Sacco and Vanzetti to Lyndon Johnson's 1948 Senate primary. What changed in the late 2010s, Vladeck argues, is how often the Court intervenes, the breadth of the policies it blocks or reinstates, its willingness to treat unexplained orders as binding on lower courts, and the inconsistency of its interventions. He walks through key examples: Gateway City Church v. Newsom and Tandon v. Newsom, in which the Court faulted the Ninth Circuit for not following COVID orders that lacked majority opinions; the Title 42 border policy; the Court's 5-4 refusal in 2021 to block Texas's SB8 abortion law; and its use of grant-vacate-remand orders and certiorari before judgment to steer lower courts.
The Defenses and the Critique
Vladeck addresses the main defenses of the Court's practice: that lower courts were resisting the Trump administration, that nationwide injunctions forced the Court's hand, that the Court is efficiently front-loading merits decisions, and that anonymity encourages compromise. He also responds to Justice Alito's 2021 Notre Dame speech defending the Court and to criticism of the "shadow docket" label itself. His central concern is not bad faith but legitimacy: explained decisions are the Court's best defense against charges of partisanship, and the justices divide along ideological lines on the shadow docket even more consistently than on the merits docket.
Origins and Reform
Vladeck traces the roots of today's practices to the early 1980s, when the reinstatement of the death penalty produced a flood of last-minute execution applications, and explains how those procedures migrated to other cases in the late 2010s. He describes himself as a reformer who wants to save the Court rather than diminish it, proposing that Congress restore some mandatory appellate jurisdiction, give death-sentenced prisoners a guaranteed appeal before execution, and channel nationwide injunctions to a single court or three-judge panels with expedited Supreme Court review.
What to Know Now
The emergency docket has become even more central since this conversation. After a quieter 2022-2023 term, the Court faced a surge of applications from the second Trump administration, which filed 41 requests for emergency relief by October 2026, as many as in Trump's entire first term, and won most of them. Some justices now prefer the term "interim docket." The Court has also moved on several issues discussed here. In Trump v. CASA (2025), it held that federal courts likely lack authority to issue universal injunctions. In Trump v. Boyle (2025), it said its interim orders, while not conclusive on the merits, "inform how a court should exercise its equitable discretion in like cases," and in NIH v. American Public Health Association (2025), Justice Gorsuch warned lower courts that they "are never free to defy" the Court's decisions. Interim orders allowing the President to remove members of independent agencies foreshadowed Trump v. Slaughter (2026), which overruled Humphrey's Executor, while the same day, in Trump v. Cook, the Court refused to let the President remove a Federal Reserve governor while her case proceeds. The Court has issued more written explanations and has occasionally heard oral argument on applications, as in Ohio v. EPA (2024), and it adopted a code of conduct for the justices in November 2023. After the Title 42 policy ended in May 2023, the Court sent that case back to be dismissed as moot.
