海角大神

The Supreme Court may have entered a new phase. Call it the emergency era.

鈥嬧�婽hroughout its history, the U.S. Supreme Court has evolved as an institution. Now, it may be evolving once more.

Call it the emergency era.

The court once worked out of a basement room in Congress, and the justices traveled the country to preside over appeals courts. The court had no control over what cases it heard until 1891. The high court we know today arguably didn鈥檛 take shape .

Now, experts say, the court is at another inflection point. This term, more than any other in the court鈥檚 history, has been dominated by the emergency docket.

The emergency docket 鈥� essentially all the cases the court decides without full briefing and oral argument 鈥� has been busier and busier in聽recent听测别补谤蝉. But this year has brought an unprecedented volume of emergency applications. In the past 10 weeks, the court has issued seven emergency orders. It may be an isolated spike, court watchers say, related to a new administration pushing the boundaries of presidential power. Or the Supreme Court could be experiencing a permanent shift in its own institutional power.

鈥淲e are seeing the court trying to adapt its procedures to keep up with the 21st century,鈥� says William Baude, a professor at the University of Chicago Law School and a former clerk for Chief Justice John Roberts.

鈥淭he emergency docket is here to stay,鈥� he adds. But the justices 鈥渟till don鈥檛 know when to put a case on the merits docket, when to rule in the middle of the night, and so on,鈥� he says.

While merits cases are briefed and argued publicly over the course of years, the emergency docket 鈥� called the shadow docket by critics 鈥� proceeds broadly out of the public eye and asks the justices to issue quick decisions with limited briefing and argument.

These orders set no legal precedent, are often procedural in nature, and could ultimately be reversed. But they have consequences. Over the past few months, in emergency docket orders, the court has paved the way for mass deportations (including to a notorious prison in El Salvador and other 鈥渢hird鈥� countries like South Sudan and Eswatini); approved mass layoffs throughout the federal government, particularly in the U.S. Department of Education; and effectively overturned a nearly century-old precedent limiting presidential power.

Indeed, while the emergency docket has been growing in prominence for a decade, this year it has served to authorize the Trump administration鈥檚 expansive interpretation of executive power. A host of Trump administration policies have been allowed to take effect before it was determined if those policies are lawful or not.

鈥淭here鈥檚 this dramatic difference between how the Trump administration is doing in the district courts and the Supreme Court,鈥� says Aziz Huq, a constitutional law professor at the University of Chicago Law School, who points to decisions like the one this month allowing the Trump administration to cut the Department of Education in half. 鈥淭hat鈥檚 going to drive perceptions.鈥�

The lack of written opinions, along with not letting people have their day in court, also creates a perception that the court is being cavalier with American legal tradition, he adds. 鈥淭he decision to set aside the norms itself is telling.鈥�

Only time will tell if this is the beginning of a new era for the court, but from midnight orders to expedited oral arguments, a majority of justices this year have shown a willingness to adapt to a possible new normal. How the court continues to adapt will be critical to American law, and to the court鈥檚 own institutional standing.

A changing docket

The emergency docket is not new. While the Supreme Court has historically done its best work slowly (i.e. on the merits docket), it has always needed ways to act quickly when necessary.

In death penalty appeals, for example, the justices resolve last minute, late-night appeals on a routine basis. When the court declines to take up cases, it does so in unsigned one-sentence orders published en masse in weekly lists.

The emergency docket is designed as a tool for the justices to resolve modest, time-sensitive disputes in ongoing cases. The decisions, which have no precedential force, are typically focused on procedure and undercooked in their legal reasoning. The in-depth opinions, the theory goes, are best left for final rulings on the merits.

The line between the two dockets has blurred in recent terms, however.

As the emergency docket has become busier, the merits docket has become quieter. The court is averaging 56 merits decisions per term this decade, down from over 160 per term in the 1980s,聽 Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. Meanwhile, the court is on pace to聽 for shadow docket orders, according to Georgetown Law Center Professor Steve Vladeck.

A confluence of factors explains the trend, experts say. Presidents of both political parties have become more active in terms of issuing executive orders and unilateral policies, which invite court challenges. Lower courts have become more willing to issue nationwide injunctions, which invite appeals to the Supreme Court. An appeal to the high court at an earlier stage in litigation gives litigants multiple opportunities to make their case to the justices.

The Supreme Court 鈥渢hrew the door open a while ago, and now a lot of people are trying to walk through,鈥� says Ben Johnson, an associate professor at the University of Florida Levin College of Law.

This trend has amplified criticisms that the court is exercising more power with less transparency. Issuing significant rulings with scant explanation, critics say, not only fails to provide guidance to litigants and lower courts, but is inappropriate coming from a group of unelected and relatively unaccountable jurists.

鈥淭he court is handing down extraordinarily high-impact rulings on the emergency docket, and in particular in the most recent shadow docket order involving the Department of Education, without a word of reasoning. And that is fundamentally at odds with the role of a court,鈥� says Kate Shaw, a constitutional law professor at the University of Pennsylvania Carey Law School. 鈥淚nstituting a norm of writing would allow them to make more careful and reasoned decision-making. And it would enhance democratic accountability, because the public would be able to see and evaluate the reasons they would give for their actions.鈥�

Some justices have said these criticisms are overblown.

鈥淭he catchy and sinister term 鈥榮hadow docket鈥� has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,鈥� said Justice Samuel Alito in a . 鈥淭his portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.鈥�

Supreme agreement

What this term has reinforced is that while the justices are more willing than ever to act on emergency appeals, there is a lack of consistent reasoning as to when they do so and why.

Court watchers and justices alike have been frustrated.

In dissents this term, both Justice Alito and Justice Ketanji Brown Jackson 鈥� a conservative and a liberal member of the court, respectively 鈥� accused their colleagues of abusing the court鈥檚 procedures in issuing an emergency order.

Both justices argued that the court didn鈥檛 have jurisdiction, meaning the ability to hear, the emergency applications at all. Both justices failed to convince seven of their colleagues 鈥� indeed, in the case of Justice Alito, the court issued 聽after midnight without waiting for him to finish his dissent.

For other critics, the problem with the Supreme Court鈥檚 shadow docket orders this term is unrelated to procedure. The issue, they say, is the court making decisions affecting huge numbers of people with next to no explanation of its legal reasoning.

The Department of Education order last week fits this theme.

In a one-paragraph, unsigned , the court lifted a temporary injunction preventing the Trump administration from firing roughly half of the agency. Why can those layoffs proceed pending a final resolution in the case when, last year, the same court said a Biden administration student loan relief program could not? There could be any number of valid legal reasons, but the court didn鈥檛 give one.

That order 鈥渋s not law,鈥� Jed Rubenfeld, a professor at Yale Law School, in The Free Press. It鈥檚 鈥渏ust an exercise of power.鈥�

鈥淚鈥檓 probably more sympathetic than most constitutional law professors to the administration鈥檚 mass layoffs,鈥� he added. But 鈥渁n unexplained, unreasoned Supreme Court order cannot claim the mantle of law. It must be obeyed, but it deserves no respect.鈥�

A term filled with emergencies

One reason shadow docket orders are short, experts say, is that the justices are wary of writing longer without more briefing and oral argument. But this term has seen the court offer some longer emergency orders with more explanation and reasoning.

In a聽 in late May, the court upheld President Donald Trump鈥檚 firing of board members of two federal agencies.

The order is notable because it effectively overturned a 90-year-old precedent, Humphrey鈥檚 Executor v. United States, which established that Congress can limit the president鈥檚 ability to remove without cause heads of certain independent federal agencies. The order didn鈥檛 explain why Humphrey鈥檚 is seemingly no longer good law 鈥� in fact, the order didn鈥檛 mention Humphrey鈥檚 at all 鈥� but it did carve out a one-sentence exemption. The president cannot fire Federal Reserve Board members without cause, the court qualified, because the Fed is 鈥渁 uniquely structured, quasi-private entity.鈥�

More substantive emergency orders are also no guarantee of avoiding confusion down the line. The four-page order in the Alien Enemies Act case ended up requiring the court鈥檚 midnight intervention two weeks later. When the court approved the government鈥檚 deportation of immigrants to third countries where they have no ties, it had to issue an order a week later clarifying that the government could deport a group of immigrants detained in Djibouti to South Sudan.

鈥淭hey don鈥檛 do their best work in emergencies,鈥� says Professor Baude at the University of Chicago, who coined the term 鈥渟hadow docket鈥� in relation to the high court in a聽.

鈥淎s more and more of their docket moves to emergency work, they鈥檙e being put in an uncomfortable position.鈥�

A new normal?

Amid these criticisms, some members of the high court believe they can handle a busier emergency docket.

鈥淲e鈥檝e been able to move much more expeditiously,鈥� said Chief Justice Roberts during oral argument in a case concerning a nationwide injunction blocking President Donald Trump鈥檚 executive order restricting birthright citizenship. Earlier this year, he noted, the court took up a case involving TikTok,聽heard an oral argument, and issued a decision all in the space of one month.

The court followed the same process with one of its biggest cases of the year, a case in which the justices 鈥� in a 6-3 ruling 鈥� lifted a nationwide injunction blocking President Donald Trump鈥檚 executive order redefining the 14th Amendment.

Moving emergency docket cases onto the merits docket in this way is one of many tools the justices have for resolving more emergency applications, Justice Brett Kavanaugh has said.

鈥淭he volume of [emergency] applications has increased,鈥� he聽 in a concurrence to the birthright citizenship decision this year. But 鈥渄eciding those applications is not a distraction from our job. It is a critical part of our job.鈥�

But is it the court鈥檚 main job? Should the court reach the end of June having issued almost twice as many emergency orders as it has merits opinions, as was the case this year?

The court鈥檚 primary constitutional responsibility, as Chief Justice John Marshall wrote in the 1803 decision Marbury v. Madison, is to 鈥渟ay what the law is.鈥� The issue with the emergency docket is that the court isn鈥檛 required to say much. That silence comes at an institutional cost to the court, experts say.

鈥淧rincipled explanations for the Court鈥檚 decisionmaking are the primary thing that separates exercises of judicial power from exercises of raw political power,鈥� wrote Professor Vladeck in June on聽.

The Supreme Court鈥檚 emergency docket began getting more active about a decade ago, experts say. The court has ruled on 113 emergency applications so far this year, an increase from 44 last year, according to Professor Chemerinsky.

Legal observers will watch to see if this emergency-dominated term becomes the start of a new era.

鈥淭he court is trying to develop better tools for handling it. And I don鈥檛 think it鈥檚 unfair to say the court is still figuring that out,鈥� says Professor Baude.

鈥淎 lot is going to turn on if the court handles its discretion responsibly or not over the next few years,鈥� he adds, 鈥渁nd whether people think the court is handling its discretion responsibly.鈥�