I have practiced law for some 30 years and never heard the term “shadow docket.” But, it has now become a very large deal in 2025. Erwin Chemerinsky, Dean of Berkeley Law School, wrote a piece in the ABA Bar Journal explaining this revolution in Supreme Court practice. The shadow docket has become paramount. The shadow docket refers to the practice of litigants at the district court level bypassing the court of appeals to file an emergency request with the U.S. Supreme Court. Such motions used to occur only in regard to state executions. If someone was set to be executed in a few weeks and he believed he had good grounds for appeal, it made sense to apply to the Supreme Court for emergency consideration. Otherwise, submitting an appeal through the Federal courts of appeal courts would require a couple of years.

Generally, the Supreme Court rules on these emergency motions with little or no explanation. The idea is to hold an expedited process. But, how can such brief rulings serve as precedent? Until this year, they never did serve as precedent. How can one or two lines hold precedential value?

Mr. Chemerinsky tells us they cannot. Yet, a recent decision from the Supreme Court insisted that those terse rulings on emergency motions do indeed serve as precedent.

Explosion in Emergency Motions

But, the current administration has taken those emergency motions to never before seen limits. In 2024, there were 44 matters on the emergency docket. In 2025, the court has seen 113 emergency motions. These motions are not the subject of extensive briefing. There are no amicus briefs. They see no review at the court of appeals level. They completely bypass the courts of appeal.

An important appeal concerned the President’s power to fire members of the boards of quasi-independent boards. Precedent since 1935 held that the President lacked that authority. Yet, in ruling on an emergency motion in May, the Supreme Court stayed the lower court’s decision preventing the firing of those board members. The court said:

“The stay also reflects our judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”

Trump v. Wilcox, No. 24-966) May 22, 2025). See that decision here. It was a whole one and one-half pages regarding a very weighty issue. This ruling effectively overruled the holding in Humphrey’s Executor v. United States, 295 U.S. 602 (1935). A 90 year old decision is overruled with little or no real discussion.

Then in a separate case, again regarding an emergency motion, the Supreme Court fussed at the lower court for not following its “precedent” in Trump v. Wilcox. So, the Supreme Court accords greater weight to a 1.5 page long decision over a 90 year old decision. This is likely the first time ever that a Supreme Court has treated a ruling on the emergency docket as actual precedent, says Dean Chemerinsky. This is simply and judging. Judging is a craft like any other. This is not quality judging. See ABA Bar Journal report here for more information.