Inside the US Supreme Court's 'shadow docket'

New York, United States – Behind the thick velvet drapes and marble columns of the United States Supreme Court, a creeping trend has emerged.

More and more, decisions are being made without full briefings or oral arguments. Time is tight, and judgements are often rendered in brief, unsigned orders that offer little to no explanation about how the nine justices arrived at their ruling.

These orders are the result of the "shadow docket", and their numbers are growing.

Since taking office for a second term, President Donald Trump is on track to file a record number of emergency applications to the Supreme Court, demanding quick turnarounds on high-stakes issues ranging from immigration to mass layoffs.

Experts say this "shadow docket" of emergency petitions signals a shift in how the court operates.

Aaron Saiger, a professor at the Fordham University School of Law, explained that, unlike any other administration in recent history, Trump has relied heavily on emergency relief from the court.

"The government asked for it rarely, and the court granted it rarely. Now, the government is asking for it routinely, and the court is granting it routinely," Saiger told Al Jazeera.

"That doesn't show a change in the underlying rules of the system, but it is a definite change in the way that the system is behaving."

As of August, in the first seven months of his second term, the Trump administration has sent at least 22 emergency applications to the Supreme Court.

This outstrips the 19 made during the full four-year term of Trump's predecessor, President Joe Biden.

Meanwhile, Barack Obama and George W Bush — both two-term presidents — only filed eight emergency petitions a piece.

The uptick under Trump symbolises a different approach to the Supreme Court, according to Saiger. "The government’s reluctance to ask for such relief has gone away," he said.

And the court appears to be responsive to many of his requests. During Trump's first term, his administration filed 41 emergency petitions, and received full or partial relief in 28 of the cases.

This time around, the Supreme Court has granted 16 of Trump's requests, fully or in part.

Trump's reliance on emergency petitions, however, has raised serious questions about how the Supreme Court interacts with the presidency — and how much transparency it owes to the American public.

Even the name "shadow docket" implies its obscure, mysterious nature.

First coined in 2015 by law professor William Baude, the term was invented to describe a range of Supreme Court orders that generally lack transparency and "merit more explanation".

It has since become a catch-all for the temporary, emergency orders the court issues outside of its regularly argued cases.

There are instances, of course, where a speedy decision is necessary.

Trump, for example, has pushed for the mass deportation of undocumented immigrants during his second term. If immigrants were unable to petition for emergency relief, they could be deported before a court hears their claim.

"The delay very substantially puts in place the policy that the government is trying to win in the long-term," Saiger said. "Sometimes, the short term really matters."

Justice Samuel Alito, one of the court's conservative justices, also defended the use of the "shadow docket" in a 2021 speech.

Written opinions issued by the court can set lasting precedents, shaping how laws are interpreted for years to come. Alito argued that the justices must therefore weigh their words — and sometimes limit what they put on paper.

“When we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences, so we have to be careful about every single thing that we say," Alito said.

But another justice, the left-leaning Sonia Sotomayor, used a recent dissent to point to the risks of the Supreme Court's increasingly frequent use of emergency orders.

On June 23, the Supreme Court granted an emergency request from the Trump administration to clear the deportation of eight migrants to South Sudan, a third-party country all but one of them had no connection to.

But the brief, unsigned order — barely 100 words long — created confusion, and initially, a lower court ruled the deportation could not proceed.

The Trump administration petitioned the Supreme Court again, and on July 3, its majority once more approved the migrants' removal, this time with a short, two-page explanation.

But in her dissent, Sotomayor questioned how lower courts could be expected to adhere to the Supreme Court's decisions if it did not explain its opinions.

"The Court’s continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing properly to divine their import, is indefensible," she wrote.

Sotomayor also suggested the court's willingness to accept emergency petitions from Trump was an indication of bias. The court currently has a six-to-three conservative majority, with a third of its members selected by Trump.

"Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial," Sotomayor wrote.

For Saiger, the most disturbing aspect of this trend is how it might erode the authority of the lower-ranked judges whose decisions the Supreme Court overturns.

Trump has challenged many of the preliminary injunctions that lower courts impose while they consider the merits of a case.

Such temporary injunctions are often granted to prevent irreparable harm from unfolding as the broader case unfolds.

"What is different about what's been happening lately is the Supreme Court has not provided any reasons and is overruling temporary decisions by the lower courts," said Saiger.

"In some ways, that's the most striking feature of what's been happening."

Saiger explained that, historically, it has fallen to the Supreme Court to decide questions of extraordinary importance, or cases that have not been resolved in appeals.

But interfering in an ongoing lawsuit was an uncommon practice, he added.

"One has the sense that what the court is trying to do is to force the lower courts into a posture of allowing the administration to proceed on many fronts, despite their doubts about the legality of those actions," said Saiger.

"That does suggest a finger on the scale in favour of the administration."

Milo Inglehart, a staff lawyer at the Transgender Law Center, fears what that bias might mean for civil rights cases.

Already, in May, the Supreme Court granted an emergency request to lift a temporary injunction that blocked the Trump administration from banning transgender people in the military.

"These cases can be zipped up to the Supreme Court for a hasty, often unreasoned decision," Inglehart said.

"The Supreme Court’s current partisan bent makes that especially dangerous, as time and again we see them siding with the Trump administration’s efforts to roll back civil rights protections."

Hasan Shafiqullah, the lawyer in charge of The Legal Aid Society’s Immigration Law Unit, underscored the risks to non-citizens in particular, given Trump's focus on restricting immigration into the US and ramping up deportations.

"The court’s actions here are capitulating to grant Trump extraordinary power, and also inflicting tremendous harm to millions of non-citizens and their families in this country along the way," he said.

Shafiqullah framed the rise of the "shadow docket" as a new era in the Supreme Court's history: "None of this was at all necessary or predictable based on decades of precedents."

For Saiger, meanwhile, the increase in emergency petitions could be a sign that the executive branch is angling for greater power over the judiciary.

One thing is clear, he said: "This administration is so willing to very aggressively push legal boundaries."