Spotlight on the Shadow Docket: A Departure from Stare Decisis
By: Rachel McCann
Edited by: Hailey Kim and Oscar Guzzino
The United States Supreme Court’s emergency docket, more commonly known as the “shadow docket,” has become an increasingly important feature of the American judicial system. The defining feature of the shadow docket is its brevity; the Supreme Court justices typically do not hear oral arguments from either litigant nor do they publish an extensive opinion for lower courts to follow. [1] For the first 200 years of the Court’s history, this emergency docket was used only when a case met a very specific set of criteria. [2] Any litigant who wished to have their case heard via this emergency track had to demonstrate that they would suffer “irreparable harm” if their application was not approved. [3] In practice, this meant that the majority of cases decided on the shadow docket before the 2010s were situations in which the Supreme Court decided on emergency relief petitions or granted parties more time to file briefs. [4] However, what was once an unknown feature of the American judicial branch has come under intense scrutiny in the last decade. As partisan tensions increasingly shape the Supreme Court’s decisionmaking, the shadow docket has become an progressively important vehicle for bringing contentious issues before the Court.
Until the first Trump administration, emergency appeals on the shadow docket remained limited, as the George W. Bush and Obama administrations made only eight requests across their collective 16-year administrations. [5] In President Trump’s first term, the administration made 41 total requests to the Supreme Court, of which 28 were granted, marking a 68% success rate. [6] During President Biden’s four-year term, his administration made 19 applications to the shadow docket. [7] However, since President Trump took office for his second term just over one year ago, the administration has submitted 27 applications to the shadow docket, 20 of which have been ruled in favor of the administration in whole or in part. [8]
The use of the shadow docket by presidential administrations highlights the increasing partisan tensions impacting the Supreme Court. While the Supreme Court was constructed by the framers as an independent branch removed from the opinion of the electorate, the reality of the Supreme Court’s composition today reflects a deep integration of the Court with the nation’s most important social and political issues. [9] The Court now reflects a deep partisan divide, which becomes especially apparent on the subjects of political importance to the country’s electorate. [10] As the importance of ideology on the bench grows, it destabilizes the significance of substantive legal arguments that the Court historically relies on. The shadow docket further exacerbates this phenomenon by fast-tracking decisionmaking, de-emphasizing written briefs and oral arguments, and significantly curtailing the Court’s written opinions.
While reflecting the deep ideological divide on the Court, this use of the shadow docket has significant impacts on the foundation of the American judicial system. Unlike the executive branch, which has the power to “take Care that the Laws be faithfully executed,” or the legislative branch, which enacts legislation and controls taxing and spending, the judicial branch relies solely on its institutional legitimacy to exercise power. [11] The legitimacy it derives power from is based on the principle of stare decisis, which holds that judges and courts must honor precedent decisions. [12] The Court’s commitment to following precedent and providing reasoned justification when departing from it gives judicial opinions their authority within the American government.
However, recent decisions on the shadow docket have demonstrated a departure from stare decisis, putting the Court’s legitimacy in significant jeopardy. Recently, in Trump v. Wilcox (2025) and Trump v. Boyle (2025), the Supreme Court granted a stay in two cases regarding the removal of a member from the National Labor Relations Board (NLRB) and Consumer Product Safety Commission (CPSC), respectively. [13][14] By allowing the Trump administration to proceed in their removal of Wilcox and Boyle, these decisions substantially undermined the Court’s decision in Humphrey’s Executor v. United States (1935).
Humphrey’s Executor, which has served as the guiding precedent in cases regarding the president’s removal authority for 90 years, imposed restrictions on the for-cause removal of independent agency heads. [15] Much like the Federal Trade Commission (FTC), which was at issue in Humphrey’s Executor, the NLRB and CPSC are also independent agencies that, since 1935, have been understood as isolated from the executive branch. [16] Although the Court did not formally overrule Humphrey’s Executor, granting a stay reflects a conclusion that the government is likely to succeed on the merits. As a result, the decisions in Wilcox and Boyle functionally destabilized the precedent, while offering no discussion of stare decisis in the majority’s two-page opinion. [17]
While there are arguments to be made on whether Humphrey’s Executor should be overruled or narrowed, these decisions have always occurred alongside a thorough exploration of why the precedent case is unworkable or was wrongly decided. In addition, to reach that decision, the Court hears extensive oral arguments and briefs from both parties to strengthen the deliberative process. However, neither of these processes are apparent in the Court’s decisions in Wilcox and Boyle. As described by Associate Justice Elena Kagan, “Nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court’s longstanding precedents, like our nearly century-old Humphrey’s decision.” [18] The destabilization of precedent is incredibly dangerous for America, not just because of the impact of any one decision, but because of its impact on the Court’s institutional legitimacy. As its only mechanism of exerting power over the United States, the words of the Supreme Court’s opinion carry significant weight, but that weight diminishes as the Court’s decisions begin to contradict each other with little to no explanation.
In sum, the Supreme Court's growing usage of the shadow docket, specifically for the merits of cases, poses significant challenges to the legitimacy of the Court. By undermining precedent and the principle of stare decisis in decisions like Trump v. Wilcox and Trump v. Boyle, the Supreme Court transforms emergency procedure into a vehicle for constitutional revision.
Notes:
Lasky, Jack. “Shadow Docket (Term): History: Research Starters: EBSCO Research.” EBSCO.
Lasky, Jack. “Shadow Docket (Term): History: Research Starters: EBSCO Research.” EBSCO.
Lasky, Jack. “Shadow Docket (Term): History: Research Starters: EBSCO Research.” EBSCO.
Lasky, Jack. “Shadow Docket (Term): History: Research Starters: EBSCO Research.” EBSCO.
Waldman, Michael, Stephen Spaulding, Alicia Bannon, Nancy Gertner, and Lisa Hilbink. “Supreme Court Shadow Docket Tracker - Challenges to Trump Administration Actions.” Brennan Center for Justice, December 9, 2025.
Chung, Andrew, and Lawrence Hurley. “The ‘Shadow Docket’: How the U.S. Supreme Court Quietly Dispatches Key Rulings.” U.S., March 23, 2021.
Waldman, Michael, Stephen Spaulding, Alicia Bannon, Nancy Gertner, and Lisa Hilbink. “Supreme Court Shadow Docket Tracker - Challenges to Trump Administration Actions.” Brennan Center for Justice, December 9, 2025.
Waldman, Michael, Stephen Spaulding, Alicia Bannon, Nancy Gertner, and Lisa Hilbink. “Supreme Court Shadow Docket Tracker - Challenges to Trump Administration Actions.” Brennan Center for Justice, December 9, 2025.
Smith, Christopher E. “Supreme Court and the U.S. Constitution: Law: Research Starters: EBSCO Research.” EBSCO, 2023.
Feldman, Adam. “Charting the Justices Decisions Cutting across Ideological Lines.” Empirical SCOTUS, July 22, 2024.
U.S. Const. art. II, § 3
“Understanding Stare Decisis.” American Bar Association, December 16, 2022.
Trump v. Wilcox, 605 U.S. ___ (1935)
Trump v. Boyle, 606 U.S. ___ (1935)
Humphrey's Executor v. United States, 295 U.S. 602 (1935)
Trump v. Wilcox, 605 U.S. ___ (1935) (Kagan, J., dissenting)
Trump v. Wilcox, 605 U.S. ___ (1935) (Kagan, J., dissenting)
Trump v. Wilcox, 605 U.S. ___ (1935) (Kagan, J., dissenting)
Bibliography:
Chung, Andrew, and Lawrence Hurley. “The ‘Shadow Docket’: How the U.S. Supreme Court
Quietly Dispatches Key Rulings.” U.S., March 23, 2021. https://web.archive.org/web/20210323202800/https://www.reuters.com/article/idUSKBN2BF14U.
Feldman, Adam. “Charting the Justices Decisions Cutting across Ideological Lines.” Empirical
SCOTUS, July 22, 2024. https://empiricalscotus.com/2024/04/01/charting-the-justices-decisions-cutting-across-ideological-lines/.
Humphrey's Executor v. United States, 295 U.S. 602 (1935)
Lasky, Jack. “Shadow Docket (Term): History: Research Starters: EBSCO Research.” EBSCO.
Accessed February 12, 2026. https://www.ebsco.com/research-starters/history/shadow-docket-term.
Smith, Christopher E. “Supreme Court and the U.S. Constitution: Law: Research Starters:
EBSCO Research.” EBSCO, 2023.
https://www.ebsco.com/research-starters/law/supreme-court-and-us-constitution.
Trump v. Boyle, 606 U.S. ___ (1935
Trump v. Wilcox, 605 U.S. ___ (1935)
“Understanding Stare Decisis.” American Bar Association, December 16, 2022.
U.S. Const. art. II, § 3
Waldman, Michael, Stephen Spaulding, Alicia Bannon, Nancy Gertner, and Lisa Hilbink.
“Supreme Court Shadow Docket Tracker - Challenges to Trump Administration Actions.” Brennan Center for Justice, December 9, 2025. https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket-tracker-challenges-trump-administration.