The Supreme Court reached a significant milestone in its phrase that ended last October: For the first time, it decided cases decided by secret ballot and with few written opinions as opposed to those that were argued in open court.
These choices, which make up the court’s” dark docket”, are a fast-track means to get a choice from the top prosecutor. They often include arguments, have fewer briefings, and have more timetables, and justices rarely give an explanation of their decisions or use of legal precedent.
The Supreme Court’s increased willingness to pass its standard approach has empowered President Donald Trump at the same time as the administration has increased use of executive power. The court has consistently approved his plans that lower courts have blocked, and has done so with little to no justification.
These emergency judgments have thrown lower courts ‘ techniques into tumult and have often directly contradicted historic legal precedent. The benefits have been significant: The high court has used the process to enact laws that restrict federal judges from issuing nationwide prohibitions, lessen Congress ‘ authority over federal agencies, and it has made it possible for immigration agents to detain Americans.
ProPublica analyzed over two decades of Supreme Court rulings, which cover all of the times under Chief Justice John Roberts and go as far back as the virtual libraries allow. We discovered that the justices had issued 63 orders on the dark case when the previous court term was up, compared to 56 orders on the more conventional merits court, where the court hears oral arguments scheduled months in advance and the justices problem signed opinions.
Legitimate scientists and court watchers were shocked by our finding. They claimed that this was possible the first time in modern history that its nine people made so many important decisions in secret.
” The trends show a judge going out of its way to enable Trump”, said Stephen Vladeck, a law professor at Georgetown University and a Supreme Court analyst. According to him, our studies give the impression that the justices are casting their votes on their social preferences.
” That’s the real blow to the judge’s credibility”, he said.
A lengthy list of questions was never answered by Supreme Court members.
In a statement, a spokesperson for the White House wrote,” President Trump has faced a previously unprecedented number of injunctions by liberal lower court judges, the similar judges who would rather drive their own policy schemes and undermine the Administration’s constitutional agenda. President Trump may continue to support the America First activities that he was elected to.
For the First Time in Two Years, Judgments on the Supreme Court’s Shadow Docket Outnumber the Merits Docket
There are two ways to ask the Supreme Court for a choice. One is to destroy your appeals to lower courts and request to argue your case in front of the higher court. The judges decide whether to hear the case, and if they do, professionals will argue their case in court. The other is to appeal the justices directly via the crisis case — to freeze a lower court judgement or government policy while the case goes through appeal.
Although most appeals to the merits docket are procedural requests or requests to stay execution for capital offenses, they have long outnumbered those to the emergency docket. When those are removed, what’s left is known as the shadow docket — cases that seek to skip the usual order of things and ask for a quick ruling from the court’s justices.
According to experts, the modern shadow docket was established in 2016 when the Supreme Court revoked President Barack Obama’s Clean Power Plan for an emergency stay. Papers obtained by The New York Times show that liberal justices at the time urged Roberts not to decide the case on an emergency basis because it broke with longtime precedent. Meanwhile, the conservative justices asserted with forcefully that the president’s plan would ultimately be overturned by the court and that it would put too much of a strain on the energy sector.
Driven by its numerous losses in lower courts, the current Trump administration appeals to the emergency docket significantly more often than previous administrations, and the court has increasingly agreed to take quick action on its appeals.
Just eight petitions were filed by the Obama and George W. Bush administrations in all of 2016. The Trump administration filed 32 in 2025 alone, an analysis by the Brennan Center for Justice found.
Donald Ayer, a former deputy solicitor general and deputy attorney general who served under the Reagan and George H. W. Bush administrations, claimed that the Roberts court’s increased willingness to intervene on Trump’s behalf has altered American life.
” On many subjects of real importance to our future, they’ve demolished what used to be the law”, he said.
After the Supreme Court used the shadow docket to issue an unsigned, one-paragraph opinion that further revoked the 1973 Roe v. Wade decision, the public began to watch in September 2021. In the order, the court refused to block Texas ‘ Senate Bill 8, the” Heartbeat Act”, which banned abortion after an embryo’s cardiac activity is detectable, typically at six weeks of pregnancy and before many people know they are pregnant. The Senate held a hearing on the shadow docket, and protests erupted all over the country.
In an unusual public acknowledgement, Justice Elena Kagan referenced the shadow docket by name in her scathing dissent, accusing the majority of green-lighting a “patently unconstitutional law” with only a cursory review in less than 72 hours.
The majority’s decision is “in all these ways a manifestation of this Court’s shadow docket decisionmaking,” Kagan wrote.” Every day becomes more unreasonably unreliable, inconsistent, and impossible to defend,” Kagan wrote.
That an opinion was even issued and that four of the justices signed their names to it was uncommon. Justices are not required to disclose their votes on the shadow docket. In rare cases, their votes are revealed in terse indications that they grant or deny the application, or even more rarely, as an opinion. Only 17 % of the votes cast had any form of public record of a vote or opinion, according to our findings.
Responding to public criticism, Justice Samuel Alito contended that the court isn’t to blame for the rise in shadow docket cases. He claimed,” We do not file these urgent applications.” ” Parties file them”.
The discussion has continued. ” We cannot expect the public to have faith in our judicial system if, without clear explanation, we consistently green-light harmful acts that do real damage”, Justice Ketanji Brown Jackson said during an April speech on the shadow docket at Yale Law School.
Emergency applications fluctuated year-over-year before this previous Supreme Court term, but there was no discernible upward trend. The applications are given first to a single justice, who decides if a case is worth referring to the full court. In recent years, justices have sent more of these appeals for review and a full court’s approval.
Last term, when there were both more cases and more referrals to the full court, the appeals to the shadow docket finally overtook those to the merits docket.
The Referrals for Emergency Applications for a Full Court Vote Have Risen Rapidly
Total applications have varied over the last two decades, with a surge last term under President Donald Trump.
The cases were consequential. The Supreme Court intervened on June 23, 2025, after a lower court had ruled that the deportation of eight men to South Sudan should have due process. The administration had requested that the court stop that order. The men were deported. The majority did not publish a statement supporting its decision.
Three months later, the Supreme Court voted to allow immigration agents to stop people based on racial or ethnic characteristics while still-ongoing litigation against it proceeded. Justice Brett Kavanaugh wrote a eminently rare shadow docket opinion to support the decision, arguing that those who were legally present in the country would be “free to go after the brief encounter.” These became known as” Kavanaugh stops”. ProPublica discovered more than 170 people who had been stopped and detained by ICE agents last year. The more than 50 Americans held even after agents learned of their citizenship were almost all Latino.
And in May, the justices authorized the state to redraw its electoral map and remove one of the two majority-Black voting districts, while an election was already taking place in Louisiana. Louisiana can now use that map for the 2026 midterms as part of a nationwide redistricting battle for control of the House of Representatives — an effort touched off by Trump’s call for Republican-led states to create more safe seats for themselves.
Roberts once consented to a Kagan dissention that harmed the shadow docket. But our analysis found that he has referred more substantive cases for a vote by the full court than any other justice, going from just one in the 2005 term when he joined the court to nearly half of all referrals in the last term.
The merits docket and the shadow docket have a distinct difference from one another. After the court holds public argument, the justices ‘ ultimate merits decisions are closely watched and extensively covered by the press. The “decision season” of the summer, when the final and most significant decisions are made, has a predetermined cadence that ends when the justices take summer recess. Not so with the shadow docket. When the public is less interested in hearing their final merits docket decision, the justices are increasingly making important decisions.
A group of Democrats led by Rep. Jamie Raskin, D-Md., have sponsored legislation to make the shadow docket more transparent.
Raskin claimed for ProPublica that any significant decision that was made without “real opinions or analysis” has lost its legitimacy.
” Lower federal courts have been deciding against the Trump administration in an overwhelming majority of cases with weighty and well-reasoned opinions”, Raskin said in a written statement. The Supreme Court overturns 100-page opinions with a flippant sentence or two, but when things get to the twilight zone of the shadow docket, it gets there. He added,” The result is a body that looks less like a Supreme Court and more like a Royal Court rubber stamping the madness and folly of the Trump Administration”.
The Roberts Court’s jurisprudence today is” as murky as the green algae water in the Reflecting Pool.”
How We Reported This Story
We compared the number of cases on the Supreme Court’s shadow docket to the court’s traditional merits docket by comparing the number of cases on the court’s online docket with the counts of decisions compiled in Penn State’s Supreme Court Database ( Version 2025 Release 01 ). For the merits docket, we counted only signed decisions in argued cases, the typical format for those rulings.
Our analysis examines Supreme Court rules from October 2003 to October 2025, when emergency applications can be easily identified by the letter” A” in their docket number. The court’s online docket dates back to 2000.
We identified more than 27, 000 emergency applications during that period, including thousands of requests that are not commonly understood to be a part of the shadow docket. The majority of appeals to the emergency docket are procedural requests, such as requests to extend the filing period, and requests to stay the sentence for capital offenses. The remainder are the focus of our reporting.
A Small Part of All Emergency Applications Are Substantial Shadow Docket Cases.
We defined a substantive application on the shadow docket as any filing where the full court was asked to intervene in the traditional appeals process, such as staying a lower court’s order.
The majority of the cases we excluded are decided by just one justice, who has the authority to refer filings to a larger court and oversees one or more federal circuits. When the cases are referred to the full court, they are the subject of a vote by the justices. Multiple experts conducted our approach, and they all agreed it was effective.
A filer can appeal to another justice if their application is denied. The justice who receives the application always refers it to the full court. We did not include these renewed applications because our analysis found the court has never granted one.
Only since the court’s term ended in October 2017, has the court labeled capital punishment cases. To identify them prior to that, we flagged applications for stays of execution. Then, we manually reviewed each case that was referred to the full court. For applications decided by a single justice, we used an AI model to flag potential capital cases by examining the parties on the application and the relief requested. Over 60 possible capital cases were manually identified and manually reviewed by the model. Despite our effort, it is possible some capital cases may still be included in our final tallies before the 2017 term.
Although majority of the decisions on the shadow docket are unsigned and do not include vote breakdowns, we were able to identify some justices ‘ voting behavior in some cases. The analysis is based on either the opinions issued by the justices, most of which are dissenting opinions, or if the justice indicated they would have granted or denied. The justices did not attach a statement to either a grant or denial in some cases. We did not record these as votes.
The first article on ProPublica: A Troubling Milestone: Most Supreme Court Decisions Are Secretive Votes With Little Justification appeared first.
