By Beatrice Neilson

Abstract

This Article examines the Supreme Court’s increasing reliance on its shadow docket in recent years—with a concurrent decline in merits cases and rise in emergency applications. While the Court decided only 46 fully briefed cases this term, it processed a record 122 emergency applications last term, raising concerns about judicial process and quality of decision-making. This shift reflects both changing litigation strategies and the Court’s growing comfort with expedited review.

I. Introduction: The Shrinking Merits Docket

It is no secret that the Supreme Court’s caseload has been steadily shrinking for decades. According to legal researcher Adam Feldman, the number of cases heard by the Supreme Court annually has consistently shrunken—from between 150 and 200 cases in the 1970s and early 1980s, to roughly 65 cases in the 2010s and 2020s.¹ Last term, for instance, the Court delivered a measly 60 decisions in fully briefed and argued cases. This term, the number is even lower—at just 46. But how could this be? There is certainly no shortage of pressing legal questions bubbling up from the lower courts. Quite obviously, the Court should be taking more cases—not less.

II. The Rise of Emergency Petitions

Justice Kagan, speaking at New York University Law School’s Birnbaum Women’s Leadership Center on September 9, 2024, had one possible explanation:

“In the last 15 years, I would say that what’s happened to our work is that we spend a ton more time doing emergency petitions…And this is the set of cases which people bring to us saying, ‘you have to solve this right away, even though it hasn’t gone through the regular lower court process.’ And you have to […] do something very quickly while other courts are operating[.] […] Fifteen years ago, we just didn’t do that.”²

III. The Shadow Docket’s Growing Influence

Indeed, concurrent with the decline in the Court’s merits docket caseload has been an increase in emergency litigation on the Court’s so-called “shadow docket”—that is, the docket on which the Court decides cases in an emergency posture, such as applications for injunctive relief, or applications for stays of such relief if granted below. These cases are often litigated at break-neck speed, with very little factual or legal development in the lower courts—yet the Justices are asked to intervene nonetheless. Worse, these cases frequently concern issues of great political salience—such as abortion, gun safety laws, and environmental protection measures. It is not hard to see why the shadow docket is so controversial. It creates profoundly perverse incentives for the Justices to make slapdash, unprincipled, and inconsistent decisions.³

Last term, the full court voted on a record-breaking 122 applications for emergency relief,⁴ more than double the number of fully briefed and argued decisions on its merits docket.

IV. The Role of Universal Remedial Orders

In fairness to the Court, the emergence of the shadow docket also owes itself in part to a rapid increase in federal district court judges entering universal or “nationwide” remedial orders—such as universal vacatur under the Administrative Procedure Act (APA)⁵ or universal injunctions sweeping state- or nationwide.⁶ The incentives for litigants to seek interlocutory appellate review of such orders are strong. And this is doubly true if the remedial order at issue blocks the government from enforcing a new agency action or policy during the pendency of litigation—which can take years.⁷

V. Certiorari Before Judgment: A Growing Trend

Even so, a rise in universal remedial orders cannot fully explain the Court’s increasing fondness for involving itself in emergency litigation. Indeed, the Court has also been more quick in recent years to grant petitions for certiorari before judgment—a mechanism through which the Supreme Court can hear cases before they are decided in the lower courts. Given the extraordinary nature of this remedy, between 1988 and 2004, the Court granted only 3 petitions for pre-judgment certiorari, and not a single such petition was issued between 2004 and 2019. Between February 2019 and January 2022, Professor Stephen Vladeck of the Georgetown University Law Center counted an astounding 14 grants of certiorari before judgment,⁸ and I have counted an additional 4 such grants since.⁹

VI. Looking Ahead: Implications for October Term 2024

Furthermore, at this time last year, the Supreme Court had yet to grant petitions for certiorari in some of the most significant decisions of October Term 2023—including Trump v. Anderson, FDA v. Alliance for Hippocratic Medicine, City of Grants Pass v. Johnson, and Trump v. United States. My point here is that we may not yet know how deep into the political fray the Court intends to wade this term. In all likelihood, the explosion of emergency litigation on the Court’s shadow docket will mean there is no shortage of potential certworthy cases still to bubble up out of the lower courts.

VII. The Cost of Fast-Track Justice

As for the current term, the Supreme Court’s docket already contains many important and controversial cases concerning issues such as the ATF’s authority to regulate ghost guns, the constitutionality of state bans on gender-affirming healthcare for transgender minors, and the scope of free-speech protections for internet pornography—to name just a few. Yet the expansion of the Supreme Court’s shadow docket almost assuredly spells more high-profile cases—and less careful, reasoned decision-making—on the horizon.

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