The Democratic Party and its media allies are always on the lookout for new ways to scare their wealthy, college-educated donors into believing that fascism is just around the corner. Enter the latest Democratic meme, the “shadow docket.”

“All Americans should be alarmed by the Supreme Court’s growing reliance on its ‘shadow docket’ to resolve controversial and high-profile cases without any transparency,” Sen. Cory Booker (D-NJ) said in a recent statement.

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Never one to miss a fundraising opportunity to bash the Supreme Court, Sen. Sheldon Whitehouse (D-RI) added, “The Roberts Court’s increasing use of the shadow docket makes it easier for this captured Court to quietly deliver for right-wing donors and Republican special interests without any meaningful transparency or public process.”

The New York Times editorial board has even weighed in, warning that the conservative justices of  the Supreme Court have used the shadow docket “to hand down a series of rulings allowing President Trump to expand executive power and alter the structure of government.”

A separate “shadow docket” of cases used by conservative justices to reward donors and expand Trump’s power sounds bad. But is any of this even true?

Of course not. Here is what is really going on.

Since its founding, the Supreme Court has adjudicated disputes by considering numerous briefs, holding oral arguments, and then issuing often lengthy opinions and dissents explaining the reasoning of its decisions. And it still does this today for about 60 to 70 cases a year. This is the so-called regular docket.

But not every action the Supreme Court takes is briefed and argued over. The Supreme Court receives and rules on thousands of smaller, less consequential motions a year, including setting due dates for briefs, allowing extensions for briefs, and receiving and denying petitions for certiorari. These are all dealt with without oral arguments and written decisions.

Some of these items do carry significant consequences. In the 1970s, after Furman v. Georgia made it harder for states to implement the death penalty, the number of emergency stays of execution skyrocketed. These stays were almost all handled without oral arguments and written decisions.

The Supreme Court also rules on other procedural items without written explanation. These include stays of lower-court decisions, vacating stays of lower courts, granting emergency injunctions, and vacating lower-court injunctions. The Supreme Court has routinely issued these items without written decisions for years without complaints.

Then, in 2015, University of Chicago law professor Will Baude coined the term “shadow docket” to refer to this large body of unstudied and unwritten decisions, and the name stuck. By 2021, Justice Elena Kagan herself invoked the term in her dissent of a 5-4 decision denying an emergency motion to block implementation of a Texas law that authorized private individuals to sue anyone they accused of performing, aiding, or abetting an abortion after six weeks.

The Supreme Court’s one-paragraph decision in no way represented a final adjudication of the Texas law’s constitutionality. The case was litigated right up until Dobbs v. Jackson Women’s Health Organization made it moot by overturning Roe v. Wade in June 2022. But the Supreme Court’s order did allow the Texas law to be implemented between September 2021 and June 2022. And no one denies that the implementation of the law over those months had a real-world impact on people’s lives.

But there is nothing new or secretive or conspiratorial about any of these decisions. The Supreme Court has been issuing them for years. And while it is true that the Supreme Court has been issuing more of these shadow docket decisions, that has far less to do with anything the Supreme Court or the Trump administration is doing, and far more to do with the failure of Congress to pass new laws.

In recent decades, presidents from both parties have been testing the limits of executive authority with executive actions. Former President Barack Obama even had a name for his abuses of executive power. He called it his “pen and phone” strategy. Using his pen and phone, Obama attempted to extend legal status to millions of illegal immigrants through his Deferred Action for Parents of Americans, a program that was later found unconstitutional. He also used it to enact his Clean Power Plan, also ruled unconstitutional, and his net neutrality regulations, which Trump eventually undid. 

Trump was not shy about using executive power during his first term, either. Multiple federal courts blocked Trump’s so-called “Muslim travel ban,” and the Supreme Court allowed those stays to hold for the first two versions. The Supreme Court did allow the third version to be implemented and sided with Trump, deeming it constitutional.

Trump’s Medicaid work requirement regulations and his sanctuary city funding restrictions were also first stayed and then struck down, first by district and then appeals courts, and the Supreme Court did not intervene. But Trump had his victories, too. After a lower court ordered Trump to end his Remain in Mexico policy, Trump appealed to the Supreme Court, and the justices lifted the ban. Also in 2020, after a lower court tried to block Trump’s public charge rule, which made it harder for immigrants to obtain legal status if they used public benefits, the Supreme Court allowed that to go forward after Trump appealed.

Former President Joe Biden was no stranger to the shadow docket either. His Occupational Safety and Health Administration vaccine mandate was stayed by the Supreme Court after employers sued to stop it, and Biden eventually lost on the merits as well. Same with his $100 billion-plus student loan bailout. But Biden had his shadow docket victories as well, including FDA v. Alliance for Hippocratic Medicine, a case in which the Supreme Court granted an emergency stay to a lower-court decision that would have banned the sale of abortion pills. And in VanDerStok v. Garland, the Supreme Court stayed a lower court ruling that would have undone Biden’s “ghost gun” rule. By siding with Biden, the Supreme Court allowed the regulation to be implemented.

As long as presidents from both parties continue to expand the reaches of executive power to get around the other party in Congress, parties affected by these actions are going to sue in federal court, some district court judges are going to rule for those plaintiffs, and then the Supreme Court is forced to decide whether or not the policy in question should be allowed to go forward or stayed while litigation proceeds. There is no way around it. Someone has to decide, and the Supreme Court is the best qualified and has the most legitimacy to do so.

Democrats may argue that the Supreme Court should include more of an explanation when issuing shadow docket decisions that affect millions of people, but they are forgetting where in the litigative process these decisions arise, how little information, the Supreme Court usually has, and most importantly, that these are litigative matters the Supreme Court will eventually have to argue and decide on the merits. Any written decisions they give at a preliminary stage would almost certainly prejudice not only lower courts, which must hear arguments and develop facts, but also the Supreme Court’s final decision.

“You can’t expect the EMTs and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way,” Justice Samuel Alito said at Notre Dame Law School in 2021. “Journalists may think that we can just dash off an opinion the way they dash off articles,” he continued, but “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.”

To be fair, Trump is pushing the boundaries of executive power more than most other presidents, even Obama. And the Supreme Court has allowed Trump’s removal of agency heads at the Merit Systems Protection Board and the National Labor Relations Board to stand while the merits are litigated. Same with layoffs at the Education Department. But the Supreme Court has also stopped Trump’s use of the Alien Enemies Act and narrowed an injunction blocking his birthright citizenship executive order. Democrats may not like how the Supreme Court decides any of these cases on the merits, but someone has to decide which lower-court injunctions should be stayed and which should be allowed to proceed, and the Supreme Court is the best entity to do that.

In the end, the Supreme Court’s so-called “shadow docket” is neither new nor nefarious. It is a necessary and long-standing part of the court’s responsibility to manage the flow of emergency legal disputes in a nation increasingly governed by executive action and litigation.

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The rise in high-stakes, fast-moving executive orders from both Democratic and Republican presidents has naturally led to more emergency motions and preliminary rulings. These rulings do not resolve the underlying legal matters — they simply maintain or alter the legal status quo while the courts deliberate. Criticizing the court for fulfilling this procedural role, especially when those same critics have cheered similar outcomes when politically convenient, is disingenuous.

The real solution is not to weaken the judiciary’s emergency functions, but to restore Congress’s lawmaking role and reduce our overreliance on presidential fiat. Until that happens, the court must continue to do what it has always done: provide a stable, if imperfect, arbiter amid legal uncertainty. Don’t fear the shadow docket, fear the dysfunction that makes it so necessary.