The Supreme Court’s Shadow Docket

The Supreme Court’s “shadow docket” sounds like a secret back hallway of law and that’s exactly why it triggers so much public suspicion. We sit down with Spencer Burrows, an 11th grade dean, AP US Government teacher, and civic engagement coordinator, to translate what the Court is actually doing when it issues emergency orders and why so many people mistake those orders for final constitutional rulings. 

We walk through the crucial difference between cases decided on the merits (full briefing, oral argument, lengthy opinions) and the emergency docket (fast requests meant to prevent irreparable harm while litigation continues). Then we dig into why the emergency docket has exploded in prominence: more aggressive executive action, more state-driven litigation, and a legal system that increasingly produces urgent nationwide fights. We also explore a provocative idea Spencer heard from former Supreme Court clerks: Congress could set clearer rules that reduce the pressure landing on the justices. 

Transparency and accountability are the heart of the debate. When an order drops with little explanation, it can feel like “nine politicians in robes” issuing edicts, even if the Court is making a narrow procedural call. We discuss headline-making examples like West Virginia v. EPA, immigration enforcement disputes, and emergency fights over abortion medication access, plus what students and everyday citizens can do to stay grounded: read the actual orders, follow the procedural posture, and check primary sources before trusting the loudest takes. 

If you care about civic education, judicial process, and how Supreme Court decisions shape daily life, this conversation will sharpen your lens. Subscribe, share with a friend who follows Court news, and leave us a review with your take: should the emergency docket come with more explanation?

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Transcript

SPEAKER_00 0:02

Welcome back to Civics in here. Today I'm joined by, I want to call you like my Civics homie because I feel like we just live in this world that like you and I get so excited about a lot of the same things. So today I'm joined by Spencer Burrows. Spencer, can you tell us a little bit about yourself? Because you are like a multidimensional civic warrior, I feel like.

SPEAKER_01 0:30

Liz, with an introduction like that, it's gonna be hard to live up. Thanks for having me here, and I appreciate you taking the time. Some of the work that I do, I'm uh an 11th grade dean at Pacific Ridge School in Carlsbad, California, San Diego County. There, I also teach AP

Meet Spencer Burrows

SPEAKER_01 0:49

US government and politics, and I'm the civic engagement coordinator. So I do a lot of the civic programming for our school, and I've gotten to collaborate with groups like your own and some of the other larger groups doing this on a nationwide basis to really push forward some of the civic education initiatives that you know we're trying to push K through 12 and at the college level. So I know that we've we've gotten across paths a little bit in the past, and I really appreciate the work that you're doing at ASU.

SPEAKER_00 1:21

So today we're gonna talk about something called the shadow docket. And this is not in the constitution, right? The Supreme Court has something called a shadow docket. So today we're gonna talk about what it is, how it functions, and why it's become increasingly important, but also kind of a controversial part of the court's work. So, Spencer, what is we'll start easy. What is the shadow docket?

SPEAKER_01 1:49

I think part of this controversy lies in that name because what we now call the shadow docket for a long time was just referred to as the emergency docket. And I feel like even the term shadow docket, shadow, already has a nefarious connotation

Shadow Docket Vs Merits Cases

SPEAKER_01 2:08

to it. And I think that colors a lot of how it's portrayed in the media. So something that I'm sure we're gonna get to that that I really want to emphasize is I feel like the media plays up the role of the shadow docket in a way that that makes it seem even worse for the public than it's already perceived. So I think what people need to know is there's a difference between the shadow slash emergency docket and the Supreme Court deciding cases on the merit. And the big difference is when the public thinks about the Supreme Court coming to a decision, that is really cases on the merit. And cases on the merit is the traditional Supreme Court case where oral argument happens probably sometime in the fall. Justices deliberate amongst themselves to reach a conclusion. They they draft different opinions, they they come to a majority and a dissent probably. Then it's announced somewhere along the line, maybe even in June. The big difference though is when we think about the Supreme Court coming to major constitutional decisions or essentially laying down the law in that sense, that is a case on the merits. However, the recent cases we've been hearing coming up on the emergencies/shadow docket, the way it's being portrayed seems to have the same effect as the merits. And I feel like the public doesn't make much of a distinction between the two. And for reasons we can we can delve into in a second, that's problematic because if the public thinks the Supreme Court is making these big momentous merit type decisions on the quote unquote shadow docket, it just sounds even worse for the institution than it normally is. And so the purpose of the emergency docket is really prevent irreparable harm by providing temporary relief. And so, what that used to be for a long time was, for example, death penalty appeals would come up from the lower courts, it would reach the justices, and they would grant the appeal or deny it, right? That that is an immediate question that has to be answered right now. Or a decision was reached in a lower court like the district court, and the appeal comes up all the way to the Supreme Court saying, well, if whatever issue is being litigated, like maybe the EPA will the one that we'll talk about in a moment. Supreme Court, you need to stay this ruling or hold this ruling for a moment because there's going to be harm in the meantime by the fine by the time the case finally reaches the Supreme Court on the merits, all this harm will have happened in the meantime. Now we'll go into, I'm sure, why the volume of cases now being seen on emergency slash shadow docket has exploded in let's just say the last 10 years. But again, if there's anything people take away from listening to this podcast, it's being able to draw the distinction between a case on the merits and a case being decided on the emergency slash shadow docket.

SPEAKER_00 5:23

And I'm glad that you brought up like things that are immediate, right? Like if somebody is on, you know, awaiting death, that is immediate. That's not something that can wait an entire Supreme Court, you know, like you said, cases starts in October, like October is when the court starts, they usually end. June is always my, I call it my Supreme Court season. Monday mornings, I'm up, I have my cup of coffee, I'm ready to hear. Why do you think the shadow docket then has become, and again, it does sound very nefarious. Like now I'm like, is this a secret? Like, why is this the way it is? But why has it become more prominent and controversial like recently? Because it does feel like all of the sudden it has become this like thing.

SPEAKER_01 6:14

I think there's a couple of reasons. And to be honest, I'm I'm parroting a lot of things that have been discussed out there floating in the ether. But one thing would be the increased uses of executive orders on the part of the president. The last, I would say, 15 years, presidents plural have been using executive order more and more. And

Why Emergency Orders Are Surging

SPEAKER_01 6:37

those actions oftentimes are the ones that are somehow reaching the Supreme Court. So that's one end. States more and more have been the litigant in cases, and it's often appeals from actions from those states that are then reaching the court. Part of what we can get into, and I I do want to relay a conversation I had with some ex-Supreme Court clerks last summer at the Supreme Court Summer Institute. In their opinion, and I thought this was a very interesting take because it's not what you usually hear in the media, is that Congress could be regulating a lot of this, and Congress could be setting the rules on how executive orders could be carried out, or at least a formality. Congress probably could regulate to a degree state standing and how that flows forward. So there are a number of people who would point towards Congress and be like, Congress, if you just did your job today, you could you could change some of these rules, and maybe that would lessen because right now the blame is being put on the Supreme Court. You're hearing all these cases, but like you know, the Supreme Court doesn't seek out cases, right? Cases come to the Supreme Court. So there are some justices on the court, both as would be construed the liberal justices or the conservative justices, who are all saying, Congress, you need to start fixing the system. Like we don't control the system, we decide cases in front of us. But to put it bluntly, executive orders, if those were lessened in volume, and if there were changes to how states had standing to bring suit on certain issues, those two, those two things I think would would affect the volume of shadow docket cases. In addition, there was a case last summer, Trump v. Casa, that for most intents of purposes, put a stay on nationwide moratoriums. And you right you might remember from both the Biden administration and then even earlier in the second term of the Trump administration, there were district court judges that were putting nationwide moratoriums on a policy or an action. And it was those moratoriums that were often getting shot all the way to the Supreme Court. And so in Trump v Casa, the court came down and said maybe we shouldn't go too far into the details because it is quite long. I would encourage people to look up the full opinion. But they said for most improv in for most intensive purposes, we're not going to be doing these nationwide injunctions. That's not a workable signal. So the fact that now that's not happening, will that decrease the number of shadow docket cases? Maybe.

SPEAKER_00 9:27

It is probably one of it, not probably, that isn't correct. It is one of the best professional developments I've ever been to because you get to talk to ex-clerks, you get to talk to, you get to be in court. Like we got to talk to a Supreme Court justice. It's it's so interesting. And I'm glad that you guys talked about this. So, what are the biggest concerns that critics might be raising about transparency and accountability when it comes to these shadow docket decisions?

SPEAKER_01 10:01

I think we first need to look at the context in which the Supreme Court operates. And if you look at the three branches, the Supreme Court, I think for good reason, has always been the least public-facing, meaning maybe even today is a bad example. But Congress today is just terminally online. You have members of Congress sounding off constantly on social media and going off on this. You have the president making many announcements online. So, like those two branches are constantly out there. The Supreme Court is not, because the intention behind this system

Transparency And Public Trust Concerns

SPEAKER_01 10:36

hearing a case oral argument in October, deliberating behind closed doors, publishing well-thought out written opinions, announcing them in June, you want that deliberate process to happen. And, you know, going all the way back to the Federalist papers, you want the justices to be able to have those deliberations without public pressure, as much as that's possible. So I think we need to start from the position that the Supreme Court has always been, for good reason, the the least public facing of all of those. Now, now you bring in the the shadow docket. Well, the shadow docket seems to even do away with the little bit of public-facing, like front-facing publicity that we used to get with these long written opinions with cases decided on the merits. So now you have shadow to talk shadow docket decisions coming down, probably with zero explanation, a quick signed order. Like I think that would obviously remove any level of transparency that did exist. And again, you keep calling it the shadow docket, like now we're we've already gone into the conspiracy land. So I think where that bothers a lot of people is when some of these orders are coming down, they seem to have the same effect as a case on the merits, even though I don't think that's that's quite the way to look at it. And we can talk about some specific cases in a second, but for example, there's a policy that you as a citizen don't agree with. Well, that policy has not reached the court. The court on Shadow Docket has allowed the policy to continue as the case is working its way up through the court system. Well, in the immediate, it would seem like they're allowing that policy, like almost like you would on the merits. But that is not the same thing, right? That is not the same thing as Brown v. Board coming down as a decision and setting a rule for everybody forever at all times. Miranda v. Arizona, any of the other big, big, big rulings that that are now settled law, essentially. To your original question, transparency, now we're getting none of that. And it seems like according to some nine politicians in robes making edicts that they don't explain.

SPEAKER_00 12:57

It is really interesting. I think, you know, when we talk about the media, I think one of the things that struck me when I was at the court, I was at the court for the handing down of whole woman's health versus Hellerstead, which is a case on abortion, very controversial, you know, outside of the court. There are people protesting, there are people, you know, giving support. It's very loud outside. But then when you go into the court, it is quiet. They are having conversations. And even, you know, even after Holman's health was decided, Justice Alino gave a dissent from the bench and he was clearly not happy with it. But there's no yelling, there's no any of this. And so the Supreme Court to me had always seemed like this very deliberative. Because when I think of Congress, I think of these big conversations and we're, you know, doing this. And as you were saying too, that they're not very public-facing. I was like, I know that members of Congress, the president, members of the executive branch have Twitter, they have truth social, you know, whatever social media. I don't think that the nine justices have so like I know the Supreme Court does as an institution, but they do not because it is kind of more quiet and deliberate in, you know, having these conversations. So you had said some things about cases. What are some, you know, you talked about Trump versus Casa. What are some other decisions that were made on the emergency document? So now I'm going to call it the emergency document or Docket because that's what it's called. Shadow Docket kind of just came to be from conversations. It's like its nickname, if you will.

SPEAKER_01 14:42

Conspiracy land. Yeah. So some of the recent ones New York Times did a whole expose uh not long ago talking about West Virginia v EPA around 2016. And I encourage listeners to go back and they can read the full reporting from from the Times and I

Key Cases That Fueled Debate

SPEAKER_01 15:04

will put that in the show notes. The general gist was that it was during the Obama administration, the EPA had made a broad ruling, the ruling got to the Supreme Court. The Supreme Court on Shadow Docket found against the administration. But I think what is again causing controversy and just feeding this whole conspiracy rule is that somehow the Times or whoever leaked it got a hold of memos that were between the justices, somewhat revealing their thought process. And again, it's just something we never get to think. We never get to see. So those memos would seem to suggest there was debate within the justices. Should we grant relief? Should we not? This looks bad. Does it not look bad? And the Times seemed to be making the argument like this is the genesis of the shadow docket and the abuses. And maybe that's true, maybe it's not, but uh more recently, earlier on with Trump's second administration, uh the ice enforcement got in front of the court, gnome vasquez, where on emergency emergency ruling, the justices allowed these ICE enforcement stops to continue. And if you take that as kind of the prime example, if you're someone who doesn't agree with those stops and you see that ruling, I mean, for all intents and purposes, that seems to you like the court is giving a full-throated endorsement of ICE and so on and so forth when in fact they're they're letting this this case proceed, right? Like nothing was decided on the merits. Come back to that idea. More recently, though, and I thought more interesting, this happened within the last few months. An abortion pill access case got to the court on an emergency basis. The question was district court allowed state of Louisiana to restrict access to the pill, should it should it continue? Justice Alito, because that was his that's his circuit, I believe, supported allowing access to the pill to continue. And I think that is a very important distinction because if we're gonna be if you're gonna play the politics game, Justice Alito is one of the least likely stereotypically to endorse any kind of pill access on those ends, but but he did because that was how the the case should be proceeding. And that is, I think, a narrative that you're not gonna hear in the media because that seems to cut across this idea that the court is 100% ideological and they again, nine politicians in robes. Those were some of the more recent cases. But again, I think, especially with the ICE example, NON v. Vasquez, because that issue about ICE and ICE, unfortunately, has been so much in the in the news and the public consciousness, the fact that had to come up on emergency appeal just feeds the fire to that degree.

SPEAKER_00 18:07

So, what should students and everyday citizens understand about the judiciary that often gets overlooked in kind of our traditional civics education? Because we, I mean, you and I know, because again, we went to this incredible professional development. Like there's so much nuance in it. So for me, I think sometimes it is, you know, the the justices are split six three or like split along ideological lines. And I think one of my besides oh my gosh, why did it just escape me? Ginsburg and I want to say Nin Yogan, but that's not like that's what she called him.

SPEAKER_01 18:50

Scalia.

SPEAKER_00 18:52

Thank you. Oh my

What Civics Class Often Misses

SPEAKER_00 18:53

goodness. Their relationship, they're on two different sides of the spectrum, but kind of one of the lesser-known ones is when Justice Ginsburg passed, Justice Thomas, who again is on the complete opposite political side, wrote this beautiful essay about her and about their relationship. So, you know, for me, the Supreme Court is just nine people who work together, like they have to work together, they have to see each other. And they're actually people. And so I always like really appreciated that. But what about you? Like, what do you think that people should understand about the judiciary?

SPEAKER_01 19:32

I agree with what you said that you'll hear this very often from the justices themselves, but also people who work in their periphery, like the clerks. Like, they really do agree more than they disagree. That's obviously not the narrative we hear. But if I had any encouragement for people who are really interested in these issues, it's that don't just stop at the reporting from an outlet, whether it be the New York Times, the Wall Street Journal, or whoever, and it's talking about a particular case. All of these opinions, all of these writings are available online, like actual court opinions. And yes, it takes a little bit of effort to actually go in and start to read through some of these things. And we apparently live in a post-literate society where reading is just gone out the window. That said, I think people would glean a lot from trying to actually understand what these decisions meant. And even if it's just reading the press release from the court itself that might give a couple of paragraphs, like, this was decided on emergency docket, and this is where it's going from here, right? To understand the case is still moving up, or maybe they remanded it back to lower court for a different issue. Don't only listen to the naysaying coming from the news sphere. Try to figure out what the actual issue is because oftentimes what is actually going on with that case or that decision is not the same as seem to be painted.

SPEAKER_00 21:01

And I know that, like, I mean, again, I love reading Supreme Court opinions. I think that it is so interesting because it does put me in a place of what was the law they were looking at? Like, what was the action? And then what did they decide and why? And, you know, I have nothing against news media, but at the end of the day, news media is a business, right? They they get paid on clicks, on how many people read. And so part of, you know, my way of doing civic literacy for myself is just to go straight to the source and to have that and and again to understand that at the end of the day, these are people, right? These are they're deciding things. And sometimes the nuance of what they have to decide is what's important, right? It is not, they're not coming in with their own political opinions on controversial things like abortion. They're actually looking at laws and how they apply and precedence and things like that. And I'm glad that you brought up like they actually agree a whole lot more than they disagree. And that's a really cool thing. And I I think that that's why, like for me, the Supreme Court is my favorite branch to study, to look at, because it's so, I don't want to say secretive, but they're not, they're not tweeting, they're not throwing things, you know, making reels on Instagram. I think that I would die if I ever saw a justice who did that. Like that's just not their style.

SPEAKER_01 22:43

Agreed. People should go back and look at RBG had a good interview with Stephen Colbert.

SPEAKER_00 22:50

Oh my gosh. Yes.

SPEAKER_01 22:52

It's worth watching. If no one's if you haven't seen it, it's worth taking a look at.

SPEAKER_00 22:57

Well, and it's so, I mean, and I know that when we talk about civics, Justice Gorsuch and Justice Sotomayor, you know, again, two sides of the political spectrum, but they both they work together because they believe in civics and and they believe in these things. There's so much more that we have in common than what we don't. And I think that really when we get to the Supreme Court, there's so much room for that. Is there anything else we want to make sure our listeners, whether they're students, teachers, or lifelong learners, need to know about the emergency document or the Supreme Court?

SPEAKER_01 23:37

Well, if I could give one last plug for the court, it's that if you get the chance to travel to DC, the Supreme Court building itself is surprisingly accessible. And it's ironic because it's literally across the street from the Capitol building, but you can walk right into the court if it's the right time of day, you can take a tour. Sitting in on a case is a little bit harder, but it's almost the forgotten third branch that's just sitting right there. So for all the outsized attention they've gotten

Visit The Court And Keep Learning

SPEAKER_01 24:11

the last 10-15 years, they're kind of lonely over there.

SPEAKER_00 24:17

Yeah, it's such a cool, it's my favorite building, and it's I like eating in the cafeteria there, or like grabbing a cup of coffee or whatever, you never know who you're gonna run into. Like it is, I ran into one of the Supreme Court like litigants in there, and I've heard stories from past participants that like a justice will walk in because they need food too. Like, this is their place of work. So, Ms. Vencer, thank you so much for going over the emergency docket with us and kind of talking, I think lifting the veil a little bit on the Supreme Court. I appreciate it.

SPEAKER_01 24:56

Liz, thank you for your time.