The U.S. Supreme Court's "Shadow Docket" conjures up this mysterious image of justices surreptitiously moving through the Supreme Court building in the dead of night, making monumental, yet anonymous decisions.

University of Chicago law professor William Baude first coined the phrase "Shadow Docket" in 2015. The name may be modern, but the concept has been around as long as the Supreme Court itself. The term refers to the U.S. Supreme Court's practice of issuing emergency orders and summary decisions outside its regular case docket, typically without oral argument.

Traditionally, the Shadow Docket was rarely used. Like seeking injunctive relief in a trial court, a litigant had to prove that they would suffer irreparable harm if the request was denied.

According to Jack Laskey, writing on EBCO, a litigant wishing to get their case decided via the Shadow Docket applies to any one of the nine justices, who can then forward the case to the rest of the Court for review. If at least five of the justices agree to grant the litigant's request, the case is placed on the Shadow Docket.

There have been 25 emergency applications sent to the court by the Trump administration this year. In each of those cases, a lower court had ruled that the president's actions were unconstitutional.

For example, recently in California, judges ruled that immigration agents could not arrest someone without reasonable suspicion based solely on a person's ethnicity or the language they spoke. President Donald Trump sent an emergency request to the Supreme Court to overrule the decision of the California judges and lift that ban.

In Noem v. Perdomo, the Court allowed immigration agents to consider race, language and work status when deciding whom to stop in Los Angeles.

Cooley Law School Professor Joseline Jean-Louis Hardrick wrote about how the Shadow Docket is impacting fundamental protections previously provided by the Supreme Court. In 1968, the Court created the "reasonable suspicion" standard in Terry v. Ohio. It was meant as a compromise, allowing police to act on less than probable cause while protecting civil liberties.

Justice Brett Kavanaugh, concurring with the majority in Noem, wrote that while ethnicity alone cannot justify a stop, it "can be a relevant factor when considered along with other salient factors." That formulation opens the door for immigration agents to use race, language, and class as part of the suspicion calculus.

Justice Sonia Sotomayor dissented, writing, "We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent."

University of Texas law professor Stephen Vladeck examined the implications of the Shadow Docket in his book, "The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic."

According to NPR's Nina Totenberg, Vladeck pointed to a speech Justice Amy Coney Barrett gave in 2021, in which she assured the audience that the current court "is not composed of partisan hacks" and urged people to "read the opinions." But as Vladeck noted, "What's remarkable about the Shadow Docket is that so often the court is handing down rulings with massive impacts in which there's no opinion to read."

"We may not agree with the specific principles the justices are articulating" in major decisions, Vladeck wrote, but at least we have some sense that these decisions are based on legal principles. In contrast, he argued, "The shadow docket has none of that."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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