Stop Calling it the "Shadow Docket"! Here's Why, and What it Actually Is: The Supreme Court Emergency Docket Explained

First, a small rant: Stop it! Just STOP IT! Stop calling it the “Shadow Docket”, that’s not even a real thing. In fact, the term *didn’t even exist* until 2015, when law author William Baude invented the term for the title of his book, which was called Foreword: The Supreme Court's Shadow Docket. It was a great marketing ploy, I’m sure it sold him a lot of books (kind of like my inventing the term “email deliverability” back in 2003, but my term didn’t have sinister overtones, and wasn’t intended to be sensational and sell books; both have become part of our lexicon, but with very different intent).

And yes, I said “sinister” because it *sounds* sinister, and that is, of course, intentional. And as you can see the term has recently exploded across the Internet, vomited out by untold social media accounts, leading to people using the term to show that they are “in the know” when, in fact, they have been duped: it’s an emperor’s new clothes situation, because *there is no shadow docket*.

There IS, however, an “emergency docket”. Let me ‘splain that to you.

You know how someone can go to court and get a temporary restaining order (TRO)? Often this is in the context of domestic violence, but it can be in any context really.

The procedure is someone files a lawsuit and *at the same time as they file the lawsuit* they *also* ask for a temporary restraining order. They are basically saying “I will suffer great harm if you, the Court, take even a day to review the actual facts of the case, so please give me this restraining order sight unseen, and I pinky-swear that when you get around to looking at the facts you will see that there was a need for this restraining order”

(As an aside, TROs are abused *all the time* in family law. A party will go in to court, allege that the other party is abusive *even if they are not*, and the court, wanting to err on the side of safety, will grant the TRO. Now the other person has a record of having a restraining order against them *when they may never have done anything*! In fact there was a time when some states were referred to as having “divorce by TRO” because a person could go into a court in that state and get a TRO against their spouse *prohibiting them from even going to their own home*, effective immediately.)

Anyways, when the Court issues a temporary restraining order it is primarily a procedural (you can think of it as ‘administrative’) matter - it *couldn’t* be an order based on the full merits of the case because the Court hasn’t even had a chance to review the case yet! All they have before them is “Great harm will come to me if you don’t grant me this restraining order,” along with a smattering of cherry-picked “facts” on which the Court can hang the TRO.

The Supreme Court’s emergency docket is *the exact same thing*. And it has existed for *more than 200 years*. It is not a new thing. But the way that the (cough) “shadow docket” is being talked about right now you would think that it’s a new thing, a new sinister thing, invented by conservative justices.

It’s not.

The way that a motion gets on the Supreme Court emergency docket is that someone appeals a *procedural* action from the lower court, such as a restraining order or injunction. The actual case is still going on in the lower court at the same time.

Appealing to the Supreme Court’s emergency docket is the appealing party saying “I will suffer great harm if you, the Supreme Court, wait until the actual case gets before you for a decision on the merits, so please give me this relief sight unseen, I double pinky-swear with a cherry on top that when you get around to looking at the facts and merits of the case you will see that there was a need for this temporary relief for which I’m asking.”

Now, what *is* new is the extraordinary number of executive orders that Trump has issued - executive orders that *violate actual law* (remember an executive order is not law, it’s basically like a CEO sending out a memo to his staff). And so they are being challenged in court. And there are a LOT of them and a LOT of challenges to them in a LOT of court cases.

And the lower courts are temporarily blocking them until the courts can actually review the facts and merits of those cases.

And because of this Trump is appealing that extraordinary number of cases based on his extraordinary number of executive orders to the Supreme Court’s emergency docket saying “We will suffer great harm if you, the Supreme Court, wait until the actual case gets before you for a decision on the merits, so please, oh pretty please, give us this relief while the case is being worked out by the lower courts. We cross our heart, hope to die, that when you get around to looking at the facts and merits of the case you will see that there was a need for this temporary relief for which we are asking. And remember that what we are doing is what the American people voted for. God bless America!”

Now the Supreme Court justices have to issue an action *without having seen the actual facts or merits of the case*. Just like the courts who are asked to issue a TRO against an alleged domestic abuser.

But there *is* a difference, and here it is:

There is both case law and historical precedence for giving great deference to the executive branch. This is for a couple of reasons.

First, and foremost, at least in theory, the executive branch, from the president on down, is carrying out *what we the people voted for*. So the deference is to both the executive branch and, through them, to the “4th branch of government” - the people.

And second, and relatedly, the executive branch may have as little as four years to carry out the will of the people. If they are blocked by a court from carrying out their “mandate from the people” during the pendency of slow-as-molasses court proceedings, the people’s will may not get carried out at all before the executive’s term expires.

Now I am not, *not*, *NOT* making excuses for or apologising for what’s coming out of the emergency docket. I am simply *explaining* what is going on.

As for the actual outcomes, well, Justices are gonna justice, and conservatives are gonna conservative, and when you put it together, conservative justices are gonna justice conservatively.

But it’s not a conspiracy, and it’s not a shadow docket. It’s actually working the way that it’s supposed to work, it just sucks for fair-minded people.

This is also a good time to remind you that just because you think that something is against the law, or should be, doesn’t mean that it is. If there is a case in a court about it, *by definition* that means that even very smart lawyers and judges aren’t sure about the legality / illegality of the thing in question. So that thing is *not* “clearly illegal”.

Note: This artice is ordinarily the sort of thing which would go only to our Notes from the Front members, however I’m making it public because I think that it’s really important for people to understand. But generally these non-court action related articles are reserved for our members. So, if you found this article helpful, and would like more things like this, I’d love you to join me as a member of Notes from the Front so that you can access all of the articles, the documents, the podcast, the private chat, and the other goodies, or heck, if you just appreciate all of the work that I do to find the facts and truth and to bring them to you every day, and think that it’s worth $5 a month. :~)

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