The shadow docket (also known as the interim docket, the emergency docket, or the non-merits docket) refers to motions and orders in the Supreme Court of the United States in cases which have not yet reached final judgment, decision on appeal, and oral argument. This term especially refers to stays and injunctions (preliminary relief), but also includes summary decisions and grant, vacate, remand (GVR) orders. The phrase shadow docket was first used in this context in 2015 by University of Chicago law professor William Baude.
The shadow docket is a break from ordinary procedure. Such cases receive very limited briefings and are typically decided a week or less after an application is filed. The process generally results in short, unsigned rulings. In contrast, merits cases take months, include extensive briefing and public oral argument, and result in lengthy written opinions detailing the reasoning of the majority and of any concurring and dissenting justices.
The shadow docket is used when the court believes an applicant will suffer "irreparable harm" if its request is not immediately granted. Historically, the shadow docket was rarely used for rulings of serious legal or political significance. However, beginning in February 2016, it has been increasingly used for consequential rulings, especially for requests by the Department of Justice for emergency stays of lower-court rulings. The practice has been criticized for various reasons, including for bias, lack of transparency, and lack of accountability.
The Roberts Court has made unprecedented use of the shadow docket to issue major rulings and sidestep ordinary procedures. The Roberts Court's decision in the procedural history of West Virginia v. EPA to use the shadow docket to halt the Obama administration's Clean Power Plan (which Roberts described in internal deliberations as causing substantial and irreversible harm to American industry) has been described as the case that gave birth to the court's use of the shadow docket. Since then, the Roberts Court used the shadow docket to halt the Biden administration's activities and to enable the second Trump administration to enact controversial policies. In 2026, the Roberts court issued more orders on the shadow docket (63) than the traditional merits docket (56).
Terminology The term "shadow docket" was coined in 2015 by William Baude, who wrote:
The term has been used by some justices themselves, with Justice Elena Kagan calling the Court's "shadow-docket decision-making" "every day becom[ing] more unreasoned, inconsistent, and impossible to defend" in a dissent to a denial of an application for injunctive relief in the case Whole Woman's Health v. Jackson (2021). The phrase itself has been criticized by Justice Samuel Alito, who called it "sinister" in a university speech and saying it was "used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways", and by senators, with Ted Cruz, a former solicitor general of Texas, saying: "Shadow docket, that is ominous. Shadows are really bad, like really, really bad".
Justices have proposed other labels for the practice. In September 2025, Justice Brett Kavanaugh told a Sixth Circuit judicial conference that "the term 'interim docket' best captures it". Justice Amy Coney Barrett, joined by Roberts and Justice Kavanaugh, wrote in Mirabelli v. Bonta (2026) that "[i]nterim applications routinely require the Court to balance the lock-in risk of saying too much against the transparency cost of saying too little".Mirabelli v. Bonta, 607 U.S. 492, 501 (2026) (Barrett, J., concurring). Chief Justice Roberts later used the phrase in an opinion for the Court in Trump v. Cook (2026), writing that the case "arises on the Court's interim docket".Trump v. Cook, No. 25A312, 609 U.S. ___ (2026), slip op. at 23. Baude wrote that he thought it was the first time the justices had used that label in an opinion.
Procedure In the Supreme Court's ordinary proceedings, cases are filed to the merits docket. Cases are accepted if four justices decide to grant certiorari (the so-called rule of four), with the overwhelming majority being denied (around 80 out of 7,000–8,000 petitions for certiorari are granted each term). Accepted cases then feature full briefings (including from amici curiae, if any) and oral arguments, with cases generally lasting months. Finally, the Court issues a lengthy, signed majority opinion, in which the majority extensively explains its reasoning for the ruling.
For the shadow docket, following an application to the relevant circuit justice, they will decide whether to independently make a ruling or refer it to their colleagues. Applications are dealt with on an accelerated time frame, with decisions coming in a week or less. Should a justice proceed alone, the parties in a case may request that other justices overrule them instead. According to the Court, there are four criteria for stays to be granted:
Shadow docket orders are usually unsigned and unexplained. Court observers may attempt to infer how the justices split based on signed concurrences and dissents, rather than the majority opinion. In the Court's August 2020July 2021 term, the exact vote count was known in 14 cases out of the 73 emergency cases referred to the whole court (there were 150 such cases in total). There were 56 merits docket rulings during that period. Inferences for judicial splits are inexact unless there are three public dissents for certiorari denials or four for all other orders.
Authority to issue stays and injunctions
The United States Congress has specifically authorized each justice to issue stays pending certiorari under . Under the Supreme Court's Rules 22 and 23, requests for stay are directed to the assigned circuit justice, who can either grant, deny, or refer the request to the full court.
Before 1990, the rules of the Supreme Court also stated that "a writ of injunction may be granted by any Justice in a case where it might be granted by the Court."Supreme Court Rule 44 (1980 revised) (titled "Stays"), published at 445 U.S. 985, 1038. Also available at the Supreme Court's website at Historical Rules of the Supreme Court, 1980 revised. However, this part of the rule (and all other specific mention of injunctions) was removed in the Supreme Court's rules revision of December 1989.Supreme Court Rule 23 (1989) (titled "Stays"; moved from Rule 44), published at 493 U.S. 1097, 1125. Also available at the Supreme Court's website at Historical Rules of the Supreme Court, 1989. And note that "Injunction, writ of" was removed from the index. Compare 445 U.S. 1064 with 493 U.S. 1172.Daniel Gonen, "Judging in Chambers: The Powers of a Single Justice of the Supreme Court", 76 U. Cinn. L. Rev. 1159, 1168–70 (2008). Nevertheless, requests for an injunction under the All Writs Act are sometimes directed to the circuit justice.
One influential in-chambers opinion denying an injunction, Communist Party of Indiana v. Whitcomb (1972) (Rehnquist, in chambers) noted that
Subsequent in-chambers opinions have cited this "indisputably clear" standard, including Lux v. Rodrigues (2010) (Roberts, in chambers) and Hobby Lobby v. Sebelius (2012) (Sotomayor, in chambers).
An order of the full court in Respect Maine PAC v. McKee (2010) denied an injunction, quoting Ohio Citizens for Responsible Energy, Inc. v. NRC (1986) (Scalia, in chambers) that a request for an injunction "demands a significantly higher justification" than a request for a stay, because it "does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts."
In Wheaton College v. Burwell (2014), the full court granted an injunction over a dissent authored by Justice Sotomayor, who argued that the "indisputably clear" standard should apply. Chief Justice Roberts, in a lone concurrence in South Bay United Pentecostal Church v. Newsom (2020) ("South Bay I"), also applied the "indisputably clear" standard to deny a request for an injunction even when it was referred to the full court. But in Roman Catholic Diocese of Brooklyn v. Cuomo (2020) and Tandon v. Newsom (2021), a majority of the court granted injunctions under the lower "likelihood of success" standard of the Winter factors, the ordinary test for a preliminary injunction. History
Historical use
The shadow docket was used primarily for issuing routine orders, such as giving parties more time to file a brief or extending oral arguments. However, on rare occasions, it was used for consequential rulings such as the 1953 stay of the executions of Julius and Ethel Rosenberg and the reinstatement in Schlesinger v. Holtzman (1973) of an emergency injunction ordering a halt to the Nixon administration's bombing of Cambodia.
A major reason why the Court has used the shadow docket has been to manage its caseload. In Maryland v. Baltimore Radio Show, Inc. (1950), Justice Felix Frankfurter explained for a unanimous court why the shadow docket was necessary, stating: "If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive."
February 2016 On February 9, 2016 in West Virginia v. EPA 15A773, the Supreme Court voted 5-4 along partisan lines to use the shadow docket for the first time to make a major decision quickly before the appeals circuit court had ruled on the merits of the EPA's Clean Power Plan. Internal Supreme Court memos obtained by an investigation from The New York Times showed that Roberts initiated the push for the use of the docket. Roberts argued that failing to stay the circuit court's decision in Michigan v. EPA while they considered the case, effectively allowed EPA regulations on mercury emissions to remain in force. By the time the Supreme Court had ruled to overturn the rule due to the financial burden it placed on companies, many companies had already spent money to become compliant with the rule. Roberts considered their lack of a stay made the EPA rule effectively irreversible. In suggesting a stay in West Virginia, Roberts dismissed warnings from his colleagues that the move was unprecedented, writing in a memo "I recognize that the posture of this stay request is not typical." The investigation concluded that that decision "marks the birth, many legal experts believe, of the court's modern 'shadow docket,' the secretive track that the Supreme Court has since used to make many major decisions." Many legal experts agree.
Since 2017 Use of the shadow docket for important rulings has increased precipitously since 2017. This coincided with the first presidency of Donald Trump, when the Department of Justice sought emergency relief (generally to stay lower court rulings against its executive actions) from the Supreme Court at a far higher rate than had previous administrations, filing 41 emergency applications over Trump's first four years in office (by comparison, over the prior 16 years the Obama administration and the Bush administration together filed only eight emergency applications).
Rulings made by way of the shadow docket during Trump's term included rulings over his travel ban, the diversion of military funds to the construction of the Mexico–United States border wall, the prohibition of transgender people from openly serving in the United States military, use of the federal death penalty, and restrictions on asylum seekers from Central America. The Supreme Court granted 28 of the Trump administration's requests; in the 16 years prior, only four were granted.