Unchecked Authority: Trump’s Use of the Supreme Court’s Shadow Docket

1. Introduction

Since President Trump's return to office, there has been an expansion of executive power. Aiding this development is the use of the Supreme Court emergency docket, sometimes referred to as the “shadow docket” or the “interim docket.” The shadow docket is the process by which the Supreme Court manages urgent requests for immediate relief. It stands as a departure from standard legal procedure and constitutionally built-in safeguards, as the cases are decided without full briefings, public hearings, or oral arguments. Although it has rarely been used in the past, the Trump administration has relied on the emergency docket with unprecedented frequency and scope, with the Supreme Court often siding with the administration. Using the emergency docket in this manner, however, marks a power shift that diminishes judicial accountability.

1. Background

Although the term “shadow docket” was coined relatively recently in 2015, the practice has existed since the earliest days of the Supreme Court.[1] To get a case placed on the docket, a litigant must apply to one of the nine justices who can, at their discretion, refer the case to the rest of the Court. When at least five justices vote to grant the request, the case is added to the shadow docket. The litigant, however, must be able to prove they would suffer from “irreparable harm” if their application were not approved. For this reason, the shadow docket was rarely used for much of the Court’s history.

However, examining the period between President Trump’s inauguration and the summer recess on June 30, 2025, the administration filed more than twice as many requests for emergency relief as the George W. Bush and Obama administrations filed in their combined 16 years.[2] Of the 23 cases the Court has acted on recently, they have sided with the Trump administration fully or partially 21 times.[3] The decided cases have allowed President Trump to ban transgender individuals from the military, execute mass firings of thousands of federal employees, deport migrants to countries where they have no ties, and cut federal spending — all while litigation continues in lower courts. 

1.  Power Shift

One of the most contentious cases on the shadow docket, Trump v. CASA Inc. (2025), reinforced limits on the power of lower courts, while expanding those of the Supreme Court. The case posed a challenge to Executive Order 14160, which sought to end birthright citizenship for those born in the U.S. while their parents had pending immigration statuses.[4] Before the case went to the Supreme Court, three separate district courts issued nationwide injunctions that ruled the Executive Order unconstitutional under the Fourteenth Amendment, and thus it could not be enforced anywhere in the United States.[5]

While the Supreme Court did not decide whether or not the Executive Order was constitutional, the Court turned it into a question of whether or not federal district courts could issue universal injunctions. More simply put, they posed the question: can lower courts pause a law or policy for the entire United States? According to the 6-3 majority decision authored by Justice Amy Coney Barrett, the answer is no. Federal judges no longer have the power to issue nationwide injunctions.[6]

In another case on the shadow docket, Trump v. Boyle (2025), the Court held that President Trump could remove three democratic members of the independent Consumer Product Safety Commission (CPSC).[7] Effectively, this allows the Trump administration to dismantle the CPSC more easily. The Court relied solely on one case from the shadow docket, Trump v. Wilcox (2025), to support the ruling. In that case, the Court similarly allowed Trump to remove members of independent agencies such as the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB)​​.[8] Not only does this undermine the work of crucial independent agencies, but it also impairs Congress’s capacity to establish and authorize them, again, all while enhancing the Court’s power to decide cases without consideration for Congress’s constitutional authority.

1. Constitutional Considerations

This massive increase in power for the Executive and the Supreme Court, combined with the decrease in power for lower federal courts and Congress, raises serious Constitutional concerns. From our country’s birth, the framers were concerned with such concentrated power. James Madison writes in Federalist No. 47 that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many…may justly be pronounced the very definition of tyranny”.[9]

We are witnessing the consolidated power Madison warned about, especially since the Court has been repeatedly aligning with President Trump. During President Biden’s term, the justices voted in favor of Biden 53% of the time, compared with 84% for the Trump administration.[10] This is unsurprising given that the court has a six-justice conservative majority, with those same justices continuing to dominate decision-making and thus delivering Trump an undoubtedly “triumphant Supreme Court Term”.[11] After nearly 400 lawsuits against the administration’s policies, lower courts have blocked many of Trump's actions on a much more bipartisan basis than the Supreme Court, as political scientist Adam Bonica observed.[12] However, because of seemingly biased shadow docket decisions, many of the president’s policies still take effect. 

The convergence between the Supreme Court and President Trump through recent shadow docket rulings negatively impacts the critical independence of the judiciary. As Hamilton explains in Federalist No. 78, the judiciary’s independence is a constitutional necessity. He clarifies that “If… the courts of justice are to be considered… against legislative encroachments… nothing will contribute so much as this to that independent spirit in the judges.” Furthermore, he reinforces this by discussing how the independence of the judges is to “guard the Constitution.”[13]

A judiciary free from biases is supposed to keep power divided and prevent branches from overstepping their constitutional limits. Since the independence of the Supreme Court is no longer evident, this collapse of judicial impartiality chips away at the framework of our country: checks and balances. In McMahon v. New York (2025), another recently decided case on the shadow docket, the 6-3 majority ruled that it would allow the Trump administration to dismantle the U.S. Department of Education.[14] In Justice Sonia Sotomayor’s dissent, she cautions that “[the decision] hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.” She further attributes this constitutional imbalance to the “misuse of the emergency docket.”[15]

1. Societal Implications

Regarding the direct effects of the shadow docket on society, the most significant impact is a reduction in transparency. Even University of Chicago Law professor William Baude, who first coined the term “shadow docket,” pointed out this issue a decade ago. Since the decisions are made with limited legal reasoning, Baude argues some rulings “merit more scrutiny than they have gotten” as the Court has “granted stays and injunctions that were both debatable and mysterious.”[16] The lack of transparency has affected two main groups: the lower courts and the general public.

Federal district courts have been left confused. In trying to apply the vague rulings from the shadow docket cases, Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts admitted in a recent case ruling that “the Supreme Court’s recent emergency docket rulings… have not been models of clarity, and have left many issues unresolved.”[17] Other district court judges have expressed similar sentiment. More worrisome, not only do they express uncertainties, but some have also communicated severe concern. In a recent questionnaire, 47 out of 65 judges from both political parties said that the Supreme Court has been mishandling the shadow docket. They called the rulings “mystical, demoralizing, and troubling” as they may spur a “judicial crisis.”[18]

Research has also shown that institutional procedures affect public opinion, and when they are unclear — as is the case with the shadow docket — the Court’s rulings are perceived as politically unfair. There is “little trust in the resulting verdicts [of the shadow docket], and increased calls for judicial accountability.”[19] This is especially worrisome given that public trust of the Supreme Court has already been significantly declining. Just one year ago, more than half of Americans (56%) reported that they disapproved of the Supreme Court following the decision in Dobbs v. Jackson Women’s Health Organization (2022). [20] Consequently, the Court’s credibility becomes questionable, which threatens the rule of law. A judge from the U.S. Court of Appeals for the Second Circuit has cautioned that “when you have that loss of confidence in the court system, people resort to other means to resolve those matters that are properly or historically within the realm of the judiciary.”[21] Such “other means” may include the preference of chaos over lawful dispute resolution.

1. Conclusion

The Supreme Court’s growing reliance on the shadow docket to advance President Trump’s agenda signals an increase in judicial power that, through its apparent ideological alignment with the Trump administration, simultaneously expands executive power. This raises concerns about the balance of powers within the government and the independence of the judicial branch. Simultaneously, the public has developed negative attitudes towards the Supreme Court, while lower district courts have been stripped of their authority, leaving them puzzled and in crisis. If left unchecked, this trend of heightened use of the shadow docket may not only threaten the stability of our institutions, but imperil democracy itself.

[1] Lasky, Jack. “Shadow docket (term).” EBSCO, 2024, https://www.ebsco.com/research-starters/history/shadow-docket-term.

[2] Wolf, Mark. “‘Shadow Docket’ Looms Large at the Supreme Court This Term.” NCSL, 11 Aug. 2025, https://www.ncsl.org/state-legislatures-news/details/shadow-docket-looms-large-at-the-supreme-court-this-term.

[3] Chung, Andrew. “US Supreme Court expands its 'emergency' docket - and Trump's power too.” Reuters, 2 Oct. 2025, https://www.reuters.com/legal/government/us-supreme-court-expands-its-emergency-docket-trumps-power-too-2025-10-02/.

[4] Exec. Order No. 14160, 90 Fed. Reg. 8449 (Jan. 20, 2025).

[5] Olivares, Efrén. “Analyzing the Supreme Court’s Dangerous Decision in Trump v. CASA.” National Immigration Law Center, 27 June 2025, https://www.nilc.org/articles/analyzing-scotus-trump-v-casa/.

[6] Trump v. CASA, Inc., 606 U.S. __ (2025)

[7] Trump v. Boyle, 606 U.S. __ (2025)

[8] Trump v. Wilcox, 605 U.S. __ (2025)

[9] Madison, James. “The Federalist Papers: No. 47,” The Avalon Project: Documents in Law History and Diplomacy, Lillian Goldman Law Library, 1 Feb. 1788, https://avalon.law.yale.edu/18th_century/fed47.asp. 

[10] Liptak, Adam. “On the Supreme Court's Emergency Docket, Sharp Partisan Divides.” The New York Times, 14 Sept. 2025, https://www.nytimes.com/2025/09/14/us/politics/supreme-court-emergency-docket-partisan.html?unlocked_article_code=1.l08.Oy8Q.e5073a32na02&smid=url-share.

[11] Liptak, Adam, and Abbie VanSickle. “A Triumphant Supreme Court Term for Trump, Fueled by Emergency Rulings.” The New York Times, 30 June 2025, https://www.nytimes.com/2025/06/28/us/supreme-court-trump-victories.html. 

[12] The Editorial Board. “'Egregious.' Brazen.' 'Lawless.' How 48 Judges Describe Trump's Actions, in Their Own Words.” The New York Times, 11 July 2025, https://www.nytimes.com/interactive/2025/07/12/opinion/editorials/federal-judges-quotes-trump-administration.html.

[13] Hamilton, Alexander. “The Federalist Papers: No. 78,” The Avalon Project: Documents in Law History and Diplomacy, Lillian Goldman Law Library, 1788, https://avalon.law.yale.edu/18th_century/fed78.asp.

[14] Turner, Cory. “Supreme Court says Trump's efforts to close the Education Department can continue.” NPR, 14 July 2025, https://www.npr.org/2025/07/14/nx-s1-5443564/trump-supreme-court-education-department.

[15] McMahon v. New York, 606 U.S. __ (2025)

[16] William Baude, "Foreword: The Supreme Court's Shadow Docket" (University of Chicago Public Law & Legal Theory Working Paper No. 508, 2015).  

[17] President and Fellows of Harvard College v. U.S. Department of Health and Human Services, No. 25-cv-11048-ADB (D.Mass.2025) 

[18] Montague, Zach, and Mattathias Schwartz. “Federal Judges, Warning of 'Judicial Crisis,' Fault Supreme Court's Emergency Orders.” The New York Times, 11 Oct. 2025, https://www.nytimes.com/2025/10/11/us/politics/judicial-crisis-supreme-court-trump.html. 

[19] Smart, E. (2023). A Shadow’s Influence? How the Shadow Docket Influences Public Opinion. American Politics Research, 52(3), 249-263. https://doi.org/10.1177/1532673X231220645 (Original work published 2024) 

[20] Annenberg Policy Center. “Trust in U.S. Supreme Court Continues to Sink.” University of Pennsylvania, 2 Oct. 2024, https://www.annenbergpublicpolicycenter.org/trust-in-us-supreme-court-continues-to-sink/.

[21] Levi, David F., et al. “Losing Faith: Why Public Trust in the Judiciary Matters.” Judicature, Duke Law School, 2022, https://judicature.duke.edu/articles/losing-faith-why-public-trust-in-the-judiciary-matters/.