Occasionally, parties ask the Supreme Court to immediately reverse or stay a lower court’s decision without full briefing or oral argument, hoping to skip over potentially years of litigation—and sometimes skipping over the appellate courts entirely. When I was a young lawyer, most appeals of this kind were considered almost frivolous, because the Court so rarely granted them. Today they are much more common, and they have a new name: the “emergency docket” or, more darkly, the “shadow docket.”
On Saturday, The New York Times published 10-year-old leaked emails and memos the justices wrote one another before issuing what many now regard as the pathbreaking ruling that gave birth to the modern shadow docket—a 2016 one-paragraph order that stayed President Barack Obama’s attempt to force power companies away from fossil fuels, something he did without congressional approval.
