Lawfare Archive: The Shadow Docket

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4.7 • 6.2K Ratings

🗓️ 13 April 2025

⏱️ 72 minutes

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Summary

From May 16, 2023: In recent years, the Supreme Court's non-merits “shadow docket” has become a topic of contestation and controversy, especially the Court's emergency orders rulings on issues ranging from immigration to abortion to Covid-19 restrictions.

To discuss these issues, Jack Goldsmith sat down with Stephen Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, who is the author of a new book entitled, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” They discussed the origins of the contemporary shadow docket in some 1973 emergency orders related to the bombing of Cambodia, why the Court’s shadow docket has grown in prominence in recent years, what's wrong with the shadow docket, and how to fix it.

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1:55.0	Good. I'm Carolyn Cornet, intern at Lawfare, with an episode from the Lawfare Archive for April 13, 2025. This week, the Trump administration requested and received emergency relief from the Supreme Court, which stayed in order to return Kilmar-Abrego-Garcia, the man erroneously deported to El Salvador, to the U.S. by Monday night. The court also stayed in order allowing board members at two independent agencies to remain in office despite President Donald Trump's attempts to fire them.
2:19.2	Neither of these cases were on the court's merits docket. Instead, they came from the shadow
2:23.5	docket, which consists of applications asking the court to block a lower court order while the
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