Court divided over use of 'shadow docket'
WASHINGTON — When the U.S. Supreme Court issued its ruling defending the Federal Reserve from political interference, it not only prevented President Donald Trump from firing one of the central bank's governors, it also highlighted growing unease among the justices about the use of their ever-expanding emergency docket.
Three of the four conservative justices who dissented in Monday's ruling involving the Fed's Lisa Cook also criticized the five justices who were in the majority for making such a consequential decision using the court's procedure designed for emergencies — and short-circuiting lower courts in the process.
That prompted Chief Justice John Roberts to defend the landmark action using this pathway in the Cook case as a matter of "prudence" on which people can disagree. Roberts authored the 5-4 ruling, joined by fellow conservative Justice Brett Kavanaugh and the court's three liberal justices.
Critics for years have raised concerns about the court's increasing willingness to decide major cases using the emergency docket — also called the "shadow docket" or "interim docket" — saying it lacks transparency and accountability to the public, and gives short shrift to complex and highstakes legal disputes.
This docket lets the justices render decisions before lower courts have decided the legal merits of a case, generally bypassing the Supreme Court's regular procedures that involve extensive briefing, oral arguments, months of deliberation and lengthy written rulings. Emergency orders typically are made rapidly and often provide no explanation or rationale.
Now another concern is emerging. As more emergency decisions usher in vast changes to the law, and even alter the court's own precedents, the justices appear divided over just how powerful this process is becoming, and how to wield it appropriately.
The justices completed their latest nine-month term on Tuesday and entered a summer recess. Their next term begins in October.
"What I find really telling is that Roberts felt he had to respond to it. He didn't have to. The opinion could have just decided the case," said Bradley University law professor Taraleigh Davis, an expert on the emergency docket, referring to the complaint by the dissenting justices.
"He felt the pressure of the complaint enough to put a principle on paper for the first time," Davis added. "And the principle he lands on, that it's a matter of prudence, is, honestly, pretty honest about the fact that there is no rule. There is no formula."
Formerly used only rarely, the court in recent years has transformed the emergency docket into a powerful force in American life, employing it to especially dramatic effect since Trump returned to office in January 2025.
The court, with its 6-3 conservative majority, backed Trump in numerous emergency decisions that let him implement contentious policies impeded by lower courts while legal challenges continued to play out.
Its emergency decisions have let Trump fire federal employees, take control of independent agencies, ban transgender people from the military, proceed with aggressive immigration raids and deport migrants to countries where they have no ties, among other actions. The conservative justices wielded this power in multiple ways, largely siding with Trump, a Reuters analysis has shown.
Among the emergency actions during the latest term that court observers argue revised existing law, the justices allowed states to redraw the boundaries of U.S. House of Representatives districts in the hopes of benefiting Republicans in elections and weighed in on the rights of parents of transgender children.
Using the emergency docket, the court also boosted Trump's power to fire independent federal regulators, allowing him last September to remove Democratic Federal Trade Commission member Rebecca Slaughter. It similarly let Trump fire other agency officials during its previous term.
Dissenting in several of those decisions, liberal Justice Elena Kagan said a 1935 precedent of the court that insulated federal regulators from such at-will firings by a president should have barred Trump's actions. Kagan asserted that the emergency docket should not be used to overrule precedent or revise existing law.
On Monday, the court overruled that precedent — a decision that expands presidential powers — in a 6-3 ruling formally affirming the legality of Trump's move to fire Slaughter.
