Taming the Shadow Docket

*Associate Professor of Law, Yale Law School. Thanks to Bruce Ackerman, Jonathan Adler, Nick Bagley, Aditya Bamzai, Will Baude, Josh Blackman, Sam Bray, Emily Bremer, Sherif Girgis, Larissa Katz, Tony Kronman, John Harrison, Tyler Lindley, Brian Lipshutz, Josh Macey, Daniel Markovits, Michael Morley, Doug NeJaime, Aaron Nielson, Jim Pfander, Zach Price, Tom Schmidt, Cristina Rodríguez, Chris Walker, Jim Whitman, the C. Boyden Gray Center for the Study of the Administrative State at George Mason University Antonin Scalia Law School, the Yale Public Law Workshop, and the Constitutional Law Institute at the University of Chicago. Thanks to David Haungs, Navid Kiassat, Andrew Liu, Darius Namazi, and Jared Riggs for research assistance. And thanks to the editors of the Virginia Law Review for their meticulous work to prepare the Article for publication.Show More

The Supreme Court’s shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This Article identifies comprehensive structural reforms, all within the Court’s control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, states, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the Administrative Procedure Act (“APA”); and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.

Introduction

In the first months of the second Trump Administration, federal district courts throughout the country issued temporary restraining orders and preliminary injunctions blocking numerous executive actions.¹ 1.See, e.g., CASA, Inc. v. Trump, 763 F. Supp. 3d 723, 727 (D. Md.), appeal dismissed, No. 25-1153, 2025 WL 2141296 (4th Cir. July 29, 2025); AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, 770 F. Supp. 3d 121, 127 (D.D.C.), vacated sub nom., Glob. Health Council v. Trump, 153 F.4th 1 (D.C. Cir. 2025); New York v. Trump, 765 F. Supp. 3d 284, 286–87 (S.D.N.Y.), modified, 765 F. Supp. 3d 287, 292–93 (S.D.N.Y. 2025); Dellinger v. Bessent, 766 F. Supp. 3d 57, 74 (D.D.C.), appeal dismissed, No. 25-5028, 2025 WL 559669 (D.C. Cir. Feb. 15, 2025) (per curiam); Wilcox v. Trump, 775 F. Supp. 3d 215, 240 (D.D.C.), rev’d sub nom.,Harris v. Bessent, 160 F.4th 1235 (D.C. Cir. 2025); California v. U.S. Dep’t of Educ., 769 F. Supp. 3d 72, 75 (D. Mass.), appeal dismissed, No. 25-1244, 2025 WL 2604596 (1st Cir. Apr. 23, 2025); J.G.G. v. Trump, 786 F. Supp. 3d 37, 83 (D.D.C.), vacated, No. 25-5217, 2025 WL 2317650 (D.C. Cir. Aug. 8, 2025) (per curiam); Wilmer Cutler Pickering Hale & Dorr LLP v. Exec. Off. of the President, 774 F. Supp. 3d 86, 90 (D.D.C. 2025); D.V.D. v. U.S. Dep’t of Homeland Sec., 778 F. Supp. 3d 355, 394 (D. Mass. 2025), appeal filed, No. 25-1393 (1st Cir. Apr. 22, 2025); Nat’l TPS All. v. Noem, 773 F. Supp. 3d 807, 868 (N.D. Cal.), aff’d, 150 F.4th 1000 (9th Cir. 2025); Learning Res., Inc. v. Trump, 784 F. Supp. 3d 209, 233 (D.D.C. 2025), vacated, 146 S. Ct. 628 (2026); Newsom v. Trump, 786 F. Supp. 3d 1235, 1263 (N.D. Cal. 2025), appeal filed, No. 25-3727 (9th Cir. June 12, 2025); President & Fellows of Harvard Coll. v. U.S. Dep’t of Homeland Sec., 788 F. Supp. 3d 182, 210–11 (D. Mass 2025), appeal filed, No. 25-1627 (1st Cir. July 1, 2025). For tallies, see Litigation Tracker: Legal Challenges to Trump Administration Actions, Just Sec.,150+ results (on file with the Virginia Law Review) (filtered by “Case Status”, “Government Action Blocked”, “Government Action Temporarily Blocked”, “Government Action Blocked Pending Appeal”), https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-tr‌ump-administration/ [https://perma.cc/N6CV-LCXT] (last visited Jan. 6, 2026, at 18:19 ET) (counting “legal challenges to Trump administration executive actions,” and counting over 150 cases in which action has been “Blocked,” “Temporarily Blocked,” or “Blocked Pending Appeal”); Steve Vladeck,What District Court Critics Aren’t Telling You, Substack: One First (June 2, 2025), https://www.stevevladeck.com/p/155-what-critics-of-district-courts [https://p‌erma.cc/27YN-32PE] (finding ninety-seven cases in which federal courts entered “some . . . coercive relief against the Trump administration”).Show More The courts issued such orders after states and advocacy groups filed suit in favorable forums, seeking broad, often nationwide, relief from the policies. Those orders moved rapidly up through the lower courts, and by mid-February, the first matter landed at the Supreme Court as an emergency application on its “shadow docket.”² 2.See Bessent v. Dellinger, 145 S. Ct. 1326, 1326–27 (2025) (mem.). Sometimes the term “shadow docket” refers generally to the Court’s non-merits docket, which includes emergency applications, petitions for certiorari, summary reversals, applications for stays of executions, procedural motions (like motions for extensions of time to file a petition for certiorari), and more. See Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii, 12, 23–24, 87–89 (2023) [hereinafter Vladeck, The Shadow Docket]; see alsoThomas P. Schmidt, Orders Without Law, 122 Mich. L. Rev. 1003, 1005 (2024) (reviewing Vladeck, The Shadow Docket, supra) (defining the “shadow docket” as encompassing “everything the Court does other than the merits docket”). In this Article, I use it to refer to the set of high-profile emergency applications that popularized the term. I also use the terms “emergency docket” or “interim docket” in the same way. SeeJack Goldsmith, Interim Orders, the Presidency, and Judicial Supremacy, 139 Harv. L. Rev. 86, 89–92, 90 n.23 (2025) (discussing the use of various terms to refer to the relevant portion of the Court’s docket).Show More The applications continued through the end of the Court’s Term, with almost twenty filed by the Solicitor General by the time the Court issued its final opinions at the end of June.³ 3.See Trump Administration Litigation Tracker, Lawfare, https://www.lawfaremedia.org/pr‌ojects-series/trials-of-the-trump-administration/tracking-trump-administration-litigation#trac‌ker (last updated Mar. 10, 2026).Show More The pattern is familiar from the Court’s frequent use of the shadow docket during the first Trump Administration and the Biden Administration.⁴ 4.See Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 134 (2019) (collecting cases from the first Trump Administration); Adam Liptak, On the Supreme Court’s Emergency Docket, Sharp Partisan Divides, N.Y. Times(Sep. 14, 2025), https://www.nytimes.com/2025/09/14/us/politics/supreme-court-emergency-docket-partisan.‌html (noting that the Biden Administration filed seventeen applications with the Court and succeeded in fifty-three percent of such applications); Goldsmith, supra note 2, at 95 & n.49 (noting that the Court decided “an unusual number of important issues of presidential power via interim orders during the first Trump and Biden Administrations” and listing cases).Show More

As that pattern emerged, commentators and some Justices criticized the use of the emergency docket. Critics noted that the Court issued unexplained orders, failed to disclose its votes, intervened too early in the appellate process, changed the substantive law without briefing on the merits, and disregarded the appropriate legal standards for emergency relief—all in cases of immense national significance.⁵ 5.See, e.g., Sarah Voehl, Illuminating the Shadow Docket: On the Increasing Impacts of This Evolving Judicial Procedure, 23 Nev. L.J. 945, 957 (2023) (insufficient reasoning and failure to identify votes); Stephen I. Vladeck, A Court of First View, 138 Harv. L. Rev. 533, 549–50 (2024) (granting certiorari before judgment); Vladeck, The Shadow Docket, supra note 2, at 163–95 (changing substantive religious liberty law); Stephen I. Vladeck, Response, Emergency Relief During Emergencies, 102 B.U. L. Rev. 1787, 1789 (2022) (applying the wrong standard for emergency relief); see also Noem v. Doe, 145 S. Ct. 1524, 1525 (2025) (mem.) (Jackson, J., dissenting from the grant of the application for a stay) (stating that the Court had “botched” consideration of “irreparable harm” for emergency relief); Trump v. Wilcox, 145 S. Ct. 1415, 1418 (2025) (mem.) (Kagan, J., dissenting from the grant of the application for stay) (arguing that the “emergency docket . . . should not be used to overrule or revise existing law”); Merrill v. Milligan, 142 S. Ct. 879, 883 (2022) (mem.) (Kagan, J., dissenting from grant of applications for stays) (noting the “scanty review” in shadow-docket cases).Show More A New York Times bestselling book warned in its subtitle that the Court has used “stealth rulings” to “amass power and undermine the republic.”⁶ 6.Vladeck,The Shadow Docket, supranote 2.Show More The remedy, many critics say, is for the Court to develop and implement better rules and procedures for its shadow-docket practices. It should issue opinions explaining itself, get better briefing, delay intervention in the appellate process, apply better legal standards for emergency intervention, and more.⁷ 7.E.g., Richard J. Pierce, Jr., The Supreme Court Should Eliminate Its Lawless Shadow Docket, 74 Admin. L. Rev. 1, 16–19 (2022) (suggesting that the Court should explain its actions whenever its opinions are “likely to have significant long-term effects”); Schmidt, supranote 2, at 1021 (same); id. at 1020 (arguing that “the emergency docket should be reserved for cases that are cert-worthy”); Kristin E. Parnigoni, Note, Shades of Scrutiny: Standards for Emergency Relief in the Shadow Docket Era, 63 B.C. L. Rev. 2743, 2777 (2022) (proposing a new standard for the Supreme Court’s emergency-relief decisions).Show More

But the core pathologies of the shadow docket cannot be cured with tweaks to the Court’s internal operating procedures. Given the current structure of federal jurisdiction, emergency applications are inevitable. As Justice Kavanaugh explained in his Labrador v. Poe ex rel. Poe concurrence, the Court “cannot avoid” resolving emergency applications about a “new federal statute, federal regulation, or state law.”⁸ 8.144 S. Ct. 921, 928 (2024) (mem.) (Kavanaugh, J., concurring in the grant of stay).Show More The Court cannot stop Congress, state legislators, the president, or administrative agencies from enacting or issuing new legislation, executive orders, or rules. It cannot stop litigants from seeking to block those policies in a federal district court perceived to be favorable to the litigant’s position.⁹ 9.SeeChristopher A. Whytock, The Evolving Forum Shopping System, 96 Corn. L. Rev. 481, 486–87 (2011) (noting that a plaintiff will sue where the “expected value of [their] claim (less the costs of litigation) is the highest based on the substantive and procedural rules of that court’s legal system”); see also id. at 487 n.25 (“This perspective is based on the standard rational-choice model of the decision to sue, according to which a plaintiff will only file a claim if the expected value of the claim . . . is greater than zero.”).Show More And it cannot realistically preclude litigants from filing emergency applications in the Supreme Court once a “consequential new law has been mistakenly enjoined or mistakenly green-lighted by the lower courts.”¹⁰ 10.Labrador, 144 S. Ct. at 928 (Kavanaugh, J., concurring in the grant of stay).Show More No matter how much the Court explains itself or asks the parties for additional briefing, the Court will be asked to resolve consequential issues with limited time to do so. The pressure on the Court to resolve such issues will be irresistible, at least as long as the Court remains committed to supervising the lower federal courts instead of allowing them to make consequential decisions on their own. And there are good reasons to think that the Court will, and perhaps should, remain committed to that supervisory role.

The Court does, however, control the capacity of the lower federal courts to interfere with nationwide or statewide policies.¹¹ 11.See, e.g., Toby J. Heytens, Doctrine Formulation and Distrust, 83 Notre Dame L. Rev. 2045, 2047 (2008) (arguing that the Supreme Court can (and does) use doctrine to “shape and direct lower court behavior”).Show More Even before the decision in Trump v. CASA, Inc., some of the Justices had explained that district courts’ issuance of “universal injunctions,” meaning injunctions that order the defendant not to enforce a law or policy against third parties not before the court, had increased the number of “high-profile” cases before the Court by turning “limited dispute[s]” into “consequential referend[a] on the law’s every provision as applied to anyone.”¹² 12.Labrador, 144 S. Ct. at 927 (Gorsuch, J., concurring in the grant of stay).Show More The scope of injunctive relief, the argument went, is a structural cause of the problems of the shadow docket. Now that the Court in CASA has concluded that injunctions that are broader than necessary to provide relief to the parties are impermissible,¹³ 13.See145 S. Ct. 2540, 2565 (2025).Show More some might think that the decision could reduce the pressure for the Court to “resolve significant and difficult questions of law on a highly expedited basis and without full briefing.”¹⁴ 14.Id.at 2559. But seeNicholas Bagley, The Supreme Court Put Nationwide Injunctions to the Torch, The Atlantic (June 28, 2025), https://www.theatlantic.com/ideas/archive/2025/06/s‌upreme-court-trump-injunctions/683354/ (discussing avenues to relief that the Court’s opinion did not address); Samuel Bray, Guest Essay, The Supreme Court Is Watching Out for the Courts, Not for Trump, N.Y. Times (June 28, 2025), https://www.nytimes.com/2025/06/28‌/opinion/birthright-citizenship-supreme-court-injunction.html (similar).Show More

CASA alone will not suffice to address the structural causes of the shadow docket.¹⁵ 15.For an argument that CASA still permits “lower courts” to “issue orders that check the executive branch in a blanket or near-blanket way,” see Mila Sohoni, In CASA You Missed It, 78 Stan. L. Rev. (forthcoming 2026) (manuscript at 19), https://papers.ssrn.com/sol3/papers.cf‌m?abstract_id=5799882 [https://perma.cc/RA8E-XPTX].Show More Shutting down one avenue by which plaintiffs seek to block federal and state policies will not eliminate the underlying incentives to use the federal courts to prevent undesirable policies from taking effect. And the current jurisdictional and remedial regime makes federal court a quick, cheap, and easy venue for states and organizational plaintiffs to block federal and state policies.¹⁶ 16.See infra Part II.Show More That problem depends on a constellation of rules about Article III standing, equitable relief under Ex parte Young or 42 U.S.C. § 1983, reviewability under the Administrative Procedure Act (“APA”), class-action certification procedures, preliminary injunctive relief, and many other doctrines. CASA did not address these alternative litigation strategies.¹⁷ 17.CASA, 145 S. Ct. at 2558 (declining to address the scope of relief for the states); id.at 2565 (Alito, J., concurring) (noting that “the availability of third-party standing and class certification” could “threaten the practical significance of today’s decision”); id.at 2567 (Kavanaugh, J., concurring) (noting alternative channels through which plaintiffs will “challenge the legality of a new federal statute or executive action”).Show More So while eliminating universal injunctions is a start, the Court would need to systematically consider other jurisdictional and remedial rules too. Thinking systematically requires disaggregating the various pathways by which cases reach the shadow docket, identifying how litigants escalate high-salience matters to the Court, and anticipating the alternative strategies they would adopt if any particular avenue were closed.

I thus offer a series of overlapping doctrinal reforms that would constrain the ability of lower courts to interfere with national or statewide policy. These reforms, broadly categorized, apply to who should sue, what claims they might bring, and what relief they might obtain.

As to who can sue: the Court could limit the Article III standing of associations and states to prevent them from using alleged injuries to their members or citizens to advance their ideological agendas. The Court could likewise limit the ability of the United States to seek equitable relief against states. Those changes would reduce the vicarious assertion of the interests of members or citizens and thus reduce the scope of relief, even while individual litigants with concrete harms (and classes that satisfy Federal Rule of Civil Procedure 23(b)(2)) could seek tailored redress. During each of the last two presidential administrations, states and associations were repeat players on the shadow docket, and limiting their ability to sue should limit the set of high-profile disputes in the federal courts.¹⁸ 18.See infraSection III.A.Show More

As to what claims can be brought: the Court could restrict suits in equity for injunctive relief under Ex parte Young (and § 1983 and implied constitutional causes of action) and suits challenging agency action under the APA. Regarding injunctive relief, the Court could return Ex parte Young to its roots by reinvigorating the “inadequate remedy at law” requirement. In other words, a plaintiff seeking equitable relief could be required to provide specific and concrete reasons why state courts are inadequate fora to adjudicate federal issues. If the Court were to restore that rule for Ex parte Young, it would also need to recognize the same rule in suits for injunctive relief under § 1983 or under implied constitutional causes of action, which would otherwise be substitutes for claims under Ex parte Young. Regarding the APA, the Court could reiterate that the APA precludes challenges to programmatic policies and refuse to allow pre-enforcement review of agency guidance or executive orders. These changes would ensure that challenges to federal regulatory action occur later, attack narrower actions, and focus on agency actions that alter a plaintiff’s legal rights instead of internal memoranda about how agencies should operate in the future. The Court might also reiterate that neither the APA nor Ex parte Young permits a suit for injunctive relief against the president, and it might embrace a “presumption of constitutionality” for legislative or executive action (or both).¹⁹ 19.See infraSection III.B.Show More

As to what relief can be granted: the Court could limit the scope of injunctions (preliminary and final), require district courts to demand injunction bonds before entering preliminary injunctions, and reject the theory of universal vacatur under the APA. The Court might also need to tighten the rules for preliminary relief for putative classes after its decision in A.A.R.P. v. Trump.²⁰ 20.145 S. Ct. 1364, 1369 (2025) (per curiam).Show More These changes would appreciably limit the scope of federal judicial interventions, whether by reducing the scope of relief or by delaying intervention to a later stage in the litigation.²¹ 21.See infraSection III.C.Show More

But why not address the other structural cause of the shadow docket? If the shadow docket emerges also from the Court’s commitment to supervision and control of lower courts, why not dispense with the Supreme Court’s supremacy instead?²² 22.See infraSection I.B.Show More First, it is not obvious that there is any realistic alternative at this point. Given the Court’s commitment to its supremacy and the plausible constitutional and institutional reasons for that supremacy, the commitment seems durable for the foreseeable future. If there is no realistic way to give broad power to federal district courts without subordinating them to the Supreme Court, taming the shadow docket necessarily requires taming the lower federal courts.

Second, the reasons one might refuse to disempower the lower courts—and thus the reasons that the reforms proposed in this Article would seem unpalatable—might likewise counsel in favor of the Supreme Court’s supremacy. In the category of high-salience cases that reach the shadow docket, the federal courts operate as a check on state and federal illegality, which some might think is particularly important if the executive branch has become more willing to stretch or violate the law to obtain its preferred policy outcomes.²³ 23.See, e.g., Transcript of Oral Argument at 57–59, Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) (No. 24A884) (statement of Kavanaugh, J.) (suggesting that “presidents of both parties,” with “good intentions,” “push hard to . . . stretch or use existing authority” because “it’s harder to get legislation through Congress”); Kent Greenfield et al., “We Are in a Constitutional Crisis”: Statement of Law Professors and Law Teachers (Apr. 7, 2025), https:‌//www.acslaw.org/wp-content/uploads/2025/04/We-Are-in-a-Constitional-Crisis-Statement-of-Law-Professors-and-Law-Teachers-4.7.25-1.pdf [https://perma.cc/97J3-YK77].Show More On this view, disempowering the lower courts would fix the shadow docket, but the inability to constrain the political branches would make matters worse. If that is one’s view, however, the shadow docket might in fact be an integral component of a federal judiciary that effectively constrains political actors.²⁴ 24.See infraPart IV.Show More The threat of the Court’s intervention, and the availability of recourse to the Supreme Court for the parties, might ensure the efficacy of the orders and precedents that lower federal courts do issue. If the supremacy of the Supreme Court is essential to the ability of the lower federal courts to rein in state and federal illegality, and if the shadow docket emerges from that supremacy, then retaining the power of the federal courts means retaining the shadow docket. Indeed, the conclusion of this line of argument might be that the effective subordination of the political branches to the federal judiciary could benefit from a more aggressive shadow docket. Perhaps reforms should aim not to disempower the federal courts to fix the shadow docket, but to strengthen the federal courts by expanding it. Indeed, that is the future for the shadow docket that Justice Kavanaugh proposed in his concurrence in CASA.²⁵ 25.See infratext accompanying notes 277–79.Show More

Two more points are worth noting at the outset, one about this Article’s methodology and one about its novelty. Methodologically, this Article assesses legal doctrines as causes of a particular problem emerging from the institutional design of the federal courts. I do not claim that any suggested reform is the “correct” interpretation of a doctrinal regime from an internal perspective. Instead, I offer reforms that could, if adopted, solve the problem of the shadow docket. At the same time, because reforms must be doctrinally plausible to be realistic options for courts confronting the problem of the shadow docket, they must have some basis in legal doctrine. Thus, each of the proposed reforms has a plausible basis in current doctrine or an extension of that doctrine.

On novelty, this Article’s novel contribution is neither to identify individually new jurisdictional and remedial proposals, nor to offer comprehensive legal arguments in support of any reform. What is novel is the comprehensive structural reconsideration of the problems of the shadow docket. Prior critiques of the shadow docket have tended to focus on the Court’s responses to emergency applications—not the structural pressures to resolve them.²⁶ 26.See infraSection II.A.Show More When commentators have focused on structural causes, they often have either identified reforms that require congressional action (as with proposals to restore three-judge district courts for emergency relief) or addressed one doctrinal problem in isolation (as with discussions of universal injunctions before CASA).²⁷ 27.See infraSection II.B.Show More The Article’s focus on structural causes and solutions is thus neither idealistic nor myopic. Instead, it offers the Court (and lower courts) solutions within its control to reduce the pressure on the shadow docket. Adopting many or some of those solutions would be, in my view, the better solution to the problems of the shadow docket. But this Article also suggests, in the alternative, a possible future for the shadow docket if the proposed reforms to the lower courts seem too costly and if, accordingly, the shadow docket must be integrated into the federal judicial system.

This Article proceeds as follows. Part I identifies the relevant structural causes of the shadow docket. Section I.A disaggregates the features of typical emergencies at the Supreme Court. Section I.B explains the Supreme Court’s commitment to supervision of the lower courts in significant cases. Part II explains why prior reforms miss the mark. Some fail to target the structural causes; others offer incomplete or unrealistic fixes to the structural causes. Part III offers structural solutions, grouped as party-based, claim-based, and remedy-based limitations. It also explains why the reforms would not reproduce the same problems in the state courts. Part IV discusses the relationship between the scope of federal judicial power and Supreme Court supervision of the lower federal courts. It concludes with alternative reforms that could make the shadow docket a better mechanism for supervising the lower courts. Those alternative reforms should function as, depending on one’s perspective, either a reductio supporting my initial reforms or a possible future for the shadow docket.

1.  See, e.g., CASA, Inc. v. Trump, 763 F. Supp. 3d 723, 727 (D. Md.), appeal dismissed, No. 25-1153, 2025 WL 2141296 (4th Cir. July 29, 2025); AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, 770 F. Supp. 3d 121, 127 (D.D.C.), vacated sub nom., Glob. Health Council v. Trump, 153 F.4th 1 (D.C. Cir. 2025); New York v. Trump, 765 F. Supp. 3d 284, 286–87 (S.D.N.Y.), modified, 765 F. Supp. 3d 287, 292–93 (S.D.N.Y. 2025); Dellinger v. Bessent, 766 F. Supp. 3d 57, 74 (D.D.C.), appeal dismissed, No. 25-5028, 2025 WL 559669 (D.C. Cir. Feb. 15, 2025) (per curiam); Wilcox v. Trump, 775 F. Supp. 3d 215, 240 (D.D.C.), rev’d sub nom., Harris v. Bessent, 160 F.4th 1235 (D.C. Cir. 2025); California v. U.S. Dep’t of Educ., 769 F. Supp. 3d 72, 75 (D. Mass.), appeal dismissed, No. 25-1244, 2025 WL 2604596 (1st Cir. Apr. 23, 2025); J.G.G. v. Trump, 786 F. Supp. 3d 37, 83 (D.D.C.), vacated, No. 25-5217, 2025 WL 2317650 (D.C. Cir. Aug. 8, 2025) (per curiam); Wilmer Cutler Pickering Hale & Dorr LLP v. Exec. Off. of the President, 774 F. Supp. 3d 86, 90 (D.D.C. 2025); D.V.D. v. U.S. Dep’t of Homeland Sec., 778 F. Supp. 3d 355, 394 (D. Mass. 2025), appeal filed, No. 25-1393 (1st Cir. Apr. 22, 2025); Nat’l TPS All. v. Noem, 773 F. Supp. 3d 807, 868 (N.D. Cal.), aff’d, 150 F.4th 1000 (9th Cir. 2025); Learning Res., Inc. v. Trump, 784 F. Supp. 3d 209, 233 (D.D.C. 2025), vacated, 146 S. Ct. 628 (2026); Newsom v. Trump, 786 F. Supp. 3d 1235, 1263 (N.D. Cal. 2025), appeal filed, No. 25-3727 (9th Cir. June 12, 2025); President & Fellows of Harvard Coll. v. U.S. Dep’t of Homeland Sec., 788 F. Supp. 3d 182, 210–11 (D. Mass 2025), appeal filed, No. 25-1627 (1st Cir. July 1, 2025). For tallies, see Litigation Tracker: Legal Challenges to Trump Administration Actions, Just Sec.
   

   ,

   150+ results (on file with the Virginia Law Review) (filtered by “Case Status”, “Government Action Blocked”, “Government Action Temporarily Blocked”, “Government Action Blocked Pending Appeal”), https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-tr‌ump-administration/ [https://perma.cc/N6CV-LCXT] (last visited Jan. 6, 2026, at 18:19 ET) (counting “legal challenges to Trump administration executive actions,” and counting over 150 cases in which action has been “Blocked,” “Temporarily Blocked,” or “Blocked Pending Appeal”); Steve Vladeck, What District Court Critics Aren’t Telling You, Substack: One First (June 2, 2025), https://www.stevevladeck.com/p/155-what-critics-of-district-courts [https://p‌erma.cc/27YN-32PE] (finding ninety-seven cases in which federal courts entered “some . . . coercive relief against the Trump administration”). ↑

2.  See Bessent v. Dellinger, 145 S. Ct. 1326, 1326–27 (2025) (mem.). Sometimes the term “shadow docket” refers generally to the Court’s non-merits docket, which includes emergency applications, petitions for certiorari, summary reversals, applications for stays of executions, procedural motions (like motions for extensions of time to file a petition for certiorari), and more. See Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii, 12, 23–24, 87–89 (2023) [hereinafter Vladeck, The Shadow Docket]; see also Thomas P. Schmidt, Orders Without Law, 122 Mich. L. Rev. 1003, 1005 (2024) (reviewing Vladeck, The Shadow Docket, supra) (defining the “shadow docket” as encompassing “everything the Court does other than the merits docket”). In this Article, I use it to refer to the set of high-profile emergency applications that popularized the term. I also use the terms “emergency docket” or “interim docket” in the same way. See Jack Goldsmith, Interim Orders, the Presidency, and Judicial Supremacy, 139 Harv. L. Rev. 86, 89–92, 90 n.23 (2025) (discussing the use of various terms to refer to the relevant portion of the Court’s docket). ↑
3.  See Trump Administration Litigation Tracker, Lawfare, https://www.lawfaremedia.org/pr‌ojects-series/trials-of-the-trump-administration/tracking-trump-administration-litigation#trac‌ker (last updated Mar. 10, 2026). ↑
4.  See Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 134 (2019) (collecting cases from the first Trump Administration); Adam Liptak, On the Supreme Court’s Emergency Docket, Sharp Partisan Divides, N.Y. Times
   

   (Sep. 14, 2025), https://www.nytimes.com/2025/09/14/us/politics/supreme-court-emergency-docket-partisan.‌html (noting that the Biden Administration filed seventeen applications with the Court and succeeded in fifty-three percent of such applications); Goldsmith, supra note 2, at 95 & n.49 (noting that the Court decided “an unusual number of important issues of presidential power via interim orders during the first Trump and Biden Administrations” and listing cases). ↑

5.  See, e.g., Sarah Voehl, Illuminating the Shadow Docket: On the Increasing Impacts of This Evolving Judicial Procedure, 23 Nev. L.J. 945, 957 (2023) (insufficient reasoning and failure to identify votes); Stephen I. Vladeck, A Court of First View, 138 Harv. L. Rev. 533, 549–50 (2024) (granting certiorari before judgment); Vladeck, The Shadow Docket, supra note 2, at 163–95 (changing substantive religious liberty law); Stephen I. Vladeck, Response, Emergency Relief During Emergencies, 102 B.U. L. Rev. 1787, 1789 (2022) (applying the wrong standard for emergency relief); see also Noem v. Doe, 145 S. Ct. 1524, 1525 (2025) (mem.) (Jackson, J., dissenting from the grant of the application for a stay) (stating that the Court had “botched” consideration of “irreparable harm” for emergency relief); Trump v. Wilcox, 145 S. Ct. 1415, 1418 (2025) (mem.) (Kagan, J., dissenting from the grant of the application for stay) (arguing that the “emergency docket . . . should not be used to overrule or revise existing law”); Merrill v. Milligan, 142 S. Ct. 879, 883 (2022) (mem.) (Kagan, J., dissenting from grant of applications for stays) (noting the “scanty review” in shadow-docket cases). ↑
6.  Vladeck,
   

   The Shadow Docket, supra note 2. ↑

7.  E.g., Richard J. Pierce, Jr., The Supreme Court Should Eliminate Its Lawless Shadow Docket, 74 Admin. L. Rev. 1, 16–19 (2022) (suggesting that the Court should explain its actions whenever its opinions are “likely to have significant long-term effects”); Schmidt, supra note 2, at 1021 (same); id. at 1020 (arguing that “the emergency docket should be reserved for cases that are cert-worthy”); Kristin E. Parnigoni, Note, Shades of Scrutiny: Standards for Emergency Relief in the Shadow Docket Era, 63 B.C. L. Rev
   

   .

   2743, 2777 (2022) (proposing a new standard for the Supreme Court’s emergency-relief decisions). ↑

8.  144 S. Ct. 921, 928 (2024) (mem.) (Kavanaugh, J., concurring in the grant of stay). ↑
9.  See Christopher A. Whytock, The Evolving Forum Shopping System, 96 Corn. L. Rev.
   

   481,

   486–87

   (2011)

   (

   noting that a plaintiff will sue where the “expected value of [their] claim (less the costs of litigation) is the highest based on the substantive and procedural rules of that court’s legal system”); see also id. at 487 n.25 (“This perspective is based on the standard rational-choice model of the decision to sue, according to which a plaintiff will only file a claim if the expected value of the claim . . . is greater than zero.”)

   .

   ↑

10.  Labrador, 144 S. Ct. at 928 (Kavanaugh, J., concurring in the grant of stay). ↑
11.  See, e.g., Toby J. Heytens, Doctrine Formulation and Distrust, 83 Notre Dame L. Rev
    

    .

    2045, 2047 (2008) (arguing that the Supreme Court can (and does) use doctrine to “shape and direct lower court behavior”). ↑

12.  Labrador, 144 S. Ct. at 927 (Gorsuch, J., concurring in the grant of stay). ↑
13.  See 145 S. Ct. 2540, 2565 (2025). ↑
14.  Id. at 2559. But see Nicholas Bagley, The Supreme Court Put Nationwide Injunctions to the Torch, The Atlantic (June 28, 2025), https://www.theatlantic.com/ideas/archive/2025/06/s‌upreme-court-trump-injunctions/683354/ (discussing avenues to relief that the Court’s opinion did not address); Samuel Bray, Guest Essay, The Supreme Court Is Watching Out for the Courts, Not for Trump, N.Y. Times (June 28, 2025), https://www.nytimes.com/2025/06/28‌/opinion/birthright-citizenship-supreme-court-injunction.html (similar). ↑
15.  For an argument that CASA still permits “lower courts” to “issue orders that check the executive branch in a blanket or near-blanket way,” see Mila Sohoni, In CASA You Missed It, 78 Stan. L. Rev. (forthcoming 2026) (manuscript at 19), https://papers.ssrn.com/sol3/papers.cf‌m?abstract_id=5799882 [https://perma.cc/RA8E-XPTX]. ↑
16.  See infra Part II. ↑
17.  CASA, 145 S. Ct. at 2558 (declining to address the scope of relief for the states); id. at 2565 (Alito, J., concurring) (noting that “the availability of third-party standing and class certification” could “threaten the practical significance of today’s decision”); id. at 2567 (Kavanaugh, J., concurring) (noting alternative channels through which plaintiffs will “challenge the legality of a new federal statute or executive action”). ↑
18.  See infra Section III.A. ↑
19.  See infra Section III.B. ↑
20.  145 S. Ct. 1364, 1369 (2025) (per curiam). ↑
21.  See infra Section III.C. ↑
22.  See infra Section I.B. ↑
23.  See, e.g., Transcript of Oral Argument at 57–59, Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) (No. 24A884) (statement of Kavanaugh, J.) (suggesting that “presidents of both parties,” with “good intentions,” “push hard to . . . stretch or use existing authority” because “it’s harder to get legislation through Congress”); Kent Greenfield et al., “We Are in a Constitutional Crisis”: Statement of Law Professors and Law Teachers (Apr. 7, 2025), https:‌//www.acslaw.org/wp-content/uploads/2025/04/We-Are-in-a-Constitional-Crisis-Statement-of-Law-Professors-and-Law-Teachers-4.7.25-1.pdf [https://perma.cc/97J3-YK77]. ↑
24.  See infra Part IV. ↑
25.  See infra text accompanying notes 277–79. ↑
26.  See infra Section II.A. ↑

27.  See infra Section II.B. ↑