What the Supreme Court Does in the Shadows

Most Americans were introduced to the Supreme Court’s “shadow docket” in 2021, when the majority declined to block a Texas law that banned abortion in the state after six weeks. Despite the protestations of the conservative justices at the time, the decision foreshadowed the 6–3 decision to overturn Roe v. Wade, the 1973 case guaranteeing the right to an abortion.

[Adam Serwer: By attacking me, Justice Alito proved my point]

Steve Vladeck, a law professor at the University of Texas at Austin and the author of the forthcoming The Shadow Docket, was one of the few legal observers who had been sounding the alarm on the Supreme Court’s use of emergency orders to make sweeping changes to American law outside of public scrutiny and regular procedure. Although emergency orders in time-sensitive cases had long been a part of the high court’s work, in recent years the volume, breadth, and partisan valence of the justices’ rulings in such matters had changed.

The conservative justices’ use of the shadow docket to make rapid, expansive rulings on important matters has since drawn public scrutiny and even criticism from both the Court’s Democratic appointees and Chief Justice John Roberts. Most recently, the Supreme Court stayed a ruling from a conservative judge outlawing the abortion drug mifepristone, an apparent retreat from the Court’s recent aggressive use of the shadow docket.

In his book, Vladeck notes that Justice Samuel Alito has “accused the shadow docket's critics of trying to intimidate the Court and undermine its