Volume 112

Taming the Shadow Docket

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. ↑

Consent & Causation

In criminal law, the doctrines surrounding sexual consent and proximate causation are both thought to reflect conclusions about individual autonomy. But these doctrines diverge in striking ways. In rape law, the choice to consent to sex is deemed sufficiently autonomous even when made in response to threats or coercion, when induced by fraudulent misrepresentations, or when produced by mental impairment. By contrast, the doctrine of proximate causation holds that a choice made in response to force, coercion, fraud, or mental impairment is insufficiently autonomous, and therefore an individual is not morally responsible for any resulting consequences. This divergence invites a crucial question: Does the law of proximate causation capture something important about individual autonomy that has been overlooked in the law of sexual consent? After all, sexual consent frequently plays a causal role in normatively desirable sexual encounters. Yet the structure of U.S. rape law elides any inquiry into causation. Might rape law be improved—might it better protect individual autonomy—by demanding that sexual consent be a proximate cause of sex itself?

This Article is the first to raise this question and undertake this inquiry. By juxtaposing consent and causation in criminal jurisprudence, it reveals an inconsistency in the understandings of autonomy that motivate those doctrines, shedding new light on longstanding criticisms of rape law. This Article then makes a preliminary case for reforming rape law by recasting sexual consent as a matter of proximate causation. It offers three grounds for doing so: First, philosophical accounts of sexual autonomy require an individual to be able to control the character and circumstances of sexual contact, a requirement that is only vindicated when consent causally contributes to sexual activity. Second, the best understanding of consent’s exonerating role in sex is that consent alters another person’s reasons for acting, a function that can only occur when consent causally motivates sexual behavior. Lastly, the leading accounts of when sex is normatively desirable rest on a conception of mutuality—that is, responsiveness to the other person’s active consent. In short, this Article advances the novel claim that sexual activity is normatively desirable when it occurs because it is consented to, not merely whenever it is consented to.

The Article concludes by considering how rape laws may be reformed to leverage the normative insights just uncovered. It first examines the recent revisions to the sexual assault provisions of the Model Penal Code adopted by the American Law Institute in 2022. Those revisions, for the first time, included both requirements of causation and requirements of nonconsent. But the Model Penal Code’s revisions hew too closely to traditional rape laws, ultimately failing to capture the broad spectrum of normatively undesirable sex that warrants criminalization. The Article instead reconfigures rape as primarily a result crime, prohibiting specific wrongful means of causing sexual intercourse and exonerating sex when consent is the proximate cause. A rape law structured around the causes of sexual intercourse may best capture our normative intuitions about why and when consent matters.

Introduction

Consent is the primary legal mechanism used by the criminal law—rape law, in particular—to safeguard sexual autonomy.1 1.See, e.g., Stuart P. Green, Criminalizing Sex: A Unified Liberal Theory 25 (2020); see also Alan Wertheimer, Consent to Sexual Relations 31 (2003) (“In effect, autonomy refers to the value that is to be protected, whereas consent refers to the means for protecting and promoting that value: we protect a person’s autonomy by prohibiting actions to which she does not consent and empowering her to engage in actions to which she does consent.” (emphasis omitted)); Luis E. Chiesa, Solving the Riddle of Rape-by-Deception, 35 Yale L. & Pol’y Rev. 407, 419 (2017) (“[C]onsent is the tool that law most commonly deploys in order to operationalize conceptions of freedom and autonomy.”); Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev. 131, 187 (2002) (“As many commentators have observed, the central value protected by sexual offense provisions is sexual autonomy or sexual integrity, the violation of which represents a unique, not readily comparable, type of harm to the victim.” (footnotes omitted)).Show More However, American rape law has long been criticized for advancing a conception of consent that survives common means of subverting autonomy.2 2.See, e.g., Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 162–68, 173–77 (1998) (detailing scholarly criticisms of rape law’s treatment of sexual fraud and sexual coercion); see also Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 114–36 (1998) (critiquing rape law’s treatment of coercive situations as consensual).Show More Judges and juries have found valid consent to sexual intercourse in the face of deadly threats,3 3.See infra Subsection I.C.1.Show More psychological coercion,4 4.See infra Subsection I.C.1.Show More material fraud,5 5.See infra Subsection I.C.2.Show More intoxication,6 6.Coley v. State, 616 So. 2d 1017, 1023 (Fla. Dist. Ct. App. 1993) (“The prevailing view is that voluntary consumption of drugs or alcohol does not, without more, render consent involuntary.”); State v. Sherrill, No. 71,253, 1995 WL 18253106, at *3–4 (Kan. Ct. App. June 9, 1995) (finding insufficient evidence that the complainant could not consent despite her testimony that “she had consumed a considerable amount of alcoholic liquor”). See generally infra Subsection I.C.3.Show More and mental impairment.7 7.See infra Subsection I.C.3.Show More As Catharine MacKinnon has documented, “Consent as a legal standard in the law of sexual assault commonly exonerates sexual interactions that are one-sided, nonmutual, unwanted, nonvoluntary, nonreciprocal, constrained, compelled, and coerced.”8 8.Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol’y Rev. 431, 443 (2016).Show More

In another corner of criminal law, threats, coercion, fraud, intoxication, and impairment are thought to so significantly undermine autonomy that a person affected by them is deemed irresponsible—both morally and legally—for resulting consequences.9 9.See infra Section II.B.Show More This is the law of proximate causation. Under a causation analysis, the criminal law rigorously interrogates whether a person’s actions are sufficiently autonomous to render that person blameworthy for consequences that follow.10 10.See, e.g., Eric A. Johnson, Trust and the Limits of Trust: Rethinking the Doctrine of Novus Actus Interveniens, 2025 U. Ill. L. Rev. 743, 751–55; Guyora Binder & Luis Chiesa, The Puzzle of Inciting Suicide, 56 Am. Crim. L. Rev. 65, 99 (2019).Show More When a person’s actions are not autonomous, it is often because their autonomy was infringed by some earlier-in-time blameworthy conduct by another, who now carries moral and legal responsibility.11 11.See Michael S. Moore, The Metaphysics of Causal Intervention, 88 Calif. L. Rev. 827, 836 (2000) (“[I]f the defendant coercively supplies the motive for the intervenor’s behavior, then that behavior does not break the causal chain between defendant’s action and the harm.”).Show More

Juxtaposing consent and causation thus reveals a tension in the criminal law’s depictions of individual autonomy—a tension that goes to the heart of what it means to bear moral and legal responsibility for sex. When the law asks whether someone is responsible for an act of sexual intercourse, it is best understood as asking a question about causation. After all, both legal and moral responsibility for an event typically follow from an inquiry into who caused the event to occur.12 12.See Binder & Chiesa, supra note 10, at 70 (explaining that causation in criminal law is “little more than a normative attribution of responsibility for a result”).Show More But when the law concludes that someone consented to an act of sexual intercourse, it also seemingly asserts something about that individual’s moral and legal responsibility. An individual who consents to sex is expected to bear the consequences of that act of consent, for better or worse, without complaint.13 13.See, e.g., Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121, 123 (1996) (“[C]onsent defeats any rights on the part of others (including the person consenting) that the actor not do the wrong act.”).Show More Moreover, because consent operates to absolve other parties from legal responsibility for a sexual act, consent seemingly intervenes in the attribution of responsibility.14 14.See id. at 124 (“Whether it functions as a ‘moral transformative’ or as a ‘stained permission,’ consent derives its normative power from the fact that it alters the obligations and permissions that collectively determine the rightness of others’ actions.”).Show More

These conclusions about moral and legal responsibility for sex are unproblematic when sex goes right. In paradigmatic consensual sexual interactions, sex presumptively happens because there was a prior act of consent. Thus, the law’s conclusions about causal responsibility and its conclusions about consensual responsibility should align.

But when sex goes wrong—when consent is tainted by external factors, including force, coercion, fraud, intoxication, and mental impairment—the criminal law’s causal conclusions diverge sharply from its conclusions about the validity of sexual consent. Consider the situation where sexual consent is fraudulently induced, such as when a doctor tells a patient that sexual intercourse is a necessary component of medical treatment.15 15.See, e.g., Boro v. Superior Ct., 210 Cal. Rptr. 122, 123 (Ct. App. 1985) (defendant posed as a doctor and convinced the victim that she needed to have sex with an anonymous donor in order to treat “a dangerous, highly infectious and perhaps fatal disease”).Show More The criminal law’s causation doctrine would hold that the doctor, rather than the patient, should bear moral and legal responsibility for causing the sex.16 16.See infra Subsection II.C.2.Show More But the criminal law’s consent doctrine would hold that the consent is valid and enforceable,17 17.See infra Subsection I.C.2.Show More rendering the sex noncriminal, and leaving the victim to bear the weight of any experienced harm.

Viewing sexual consent as one act in a chain of actions that results in sexual intercourse reveals a limitation in the structure of U.S. rape law. The typical rape statute in the United States makes sexual nonconsent an attendant circumstance—an extraneous fact that is not causally connected to the essential conduct with which the defendant stands accused.18 18.The traditional common law definition of rape was “carnal knowledge of a woman forcibly and against her will.” 4 William Blackstone, Commentaries *210. In this formulation, still relevant in roughly half of U.S. states, MacKinnon, supra note 8, at 437 & n.26, the element that the intercourse be nonconsensual (or “against her will”) is an attendant circumstance, see, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1121 n.101 (1986). Attendant circumstances “refer to the objective situation that the law requires to exist, in addition to the defendant’s act or any results that the act may cause.” Model Penal Code § 5.01 cmt. at 301 n.9 (A.L.I., Official Draft and Revised Comments 1985).Show More Because of this structural choice, sexual consent renders sexual intercourse noncriminal whenever it is present. External factors that bear on moral responsibility—force, coercion, fraud, and impairment among them—have little doctrinal significance in defining a particular sexual interaction as rape because causation is left out of the picture.19 19.See infra Section I.C.Show More

This revelation invites two further questions, one normative and one doctrinal. Normatively, ought we demand that consent play a causal role in sexual interactions if it is to exonerate them? Stated differently, is the mere presence of legally valid consent morally transformative? Or is sex normatively desirable only when legally valid consent causes subsequent sexual acts? Assigning a causal role to sexual consent seemingly ensures that criminality maps onto our ordinary intuitions about who bears responsibility for a result. If rape law—like criminal law more generally—seeks to track moral responsibility (hence blameworthiness),20 20.Although there are of course varied justifications for the criminal law, many leading theorists agree that blameworthiness is or ought to be the centerpiece of our criminal system. See, e.g., Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 Ohio St. J. Crim. L. 449, 449 (2012); Michael Moore, Placing Blame: A General Theory of the Criminal Law 153–54 (1997); Larry Alexander & Kimberly Kessler Ferzan with Stephen Morse, Crime and Culpability: A Theory of Criminal Law 66–67 (2009).Show More there are at least provisional arguments that causation should be required.21 21.See infra Section III.A.Show More

Doctrinally, contrasting consent and causation invites inquiry into how to structure rape statutes to ensure that consent is causally efficacious. I have been down this road once before, postulating that a rape law modeled on human trafficking laws might profitably incorporate a causation requirement.22 22.Ben A. McJunkin, Rape as Indignity, 109 Corn. L. Rev. 385, 447 (2024).Show More The recent reforms to the Model Penal Code also hint in this direction. Under the model language adopted at the 2022 annual meeting, at least some sexual assaults would require that sexual intercourse be caused by the defendant’s use of force, deception, or extortion (and therefore not caused by the complainant’s consent).23 23.See Model Penal Code §§ 213.1–213.2, 213.4–213.5 (A.L.I., Tentative Draft No. 6, 2022).Show More However, the model language ultimately continues the trend of centering the presence and validity of consent, rather than its causal role in the encounter. Taking consent’s causal role in sexual relations seriously would thus require revisions to rape law that go beyond the new Model Penal Code.

This Article proceeds in three Parts. Part I examines the current role of consent in U.S. rape law and its ostensible commitment to protecting individual sexual autonomy. This Part catalogues how consent has been found to be present and valid even in the face of threats, coercion, fraud, or mental impairment. Part II examines the doctrines of proximate and intervening causation, exploring these doctrines’ philosophical grounding in individual autonomy. In contrast to Part I, this Part catalogues how threats, coercion, fraud, and mental impairment interrupt causation precisely because they so impair autonomy as to absolve individuals of moral and legal responsibility. In light of this juxtaposition, Part III constructs a normative argument that a proper understanding of autonomy requires that consent play a causal role in sexual intercourse if intercourse is to be normatively desirable. It then explores the consequences of this argument for rape law reformers: rape should not be understood as sex in the absence of consent, but rather as causing sex through specified, prohibited means other than consent, allowing sexual consent’s doctrinal role to track its normative one.

  1.  See, e.g., Stuart P. Green, Criminalizing Sex: A Unified Liberal Theory 25 (2020); see also Alan Wertheimer, Consent to Sexual Relations 31 (2003) (“In effect, autonomy refers to the value that is to be protected, whereas consent refers to the means for protecting and promoting that value: we protect a person’s autonomy by prohibiting actions to which she does not consent and empowering her to engage in actions to which she does consent.” (emphasis omitted)); Luis E. Chiesa, Solving the Riddle of Rape-by-Deception, 35 Yale L. & Pol’y Rev. 407, 419 (2017) (“[C]onsent is the tool that law most commonly deploys in order to operationalize conceptions of freedom and autonomy.”); Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev. 131, 187 (2002) (“As many commentators have observed, the central value protected by sexual offense provisions is sexual autonomy or sexual integrity, the violation of which represents a unique, not readily comparable, type of harm to the victim.” (footnotes omitted)). ↑
  2.  See, e.g., Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 162–68, 173–77 (1998) (detailing scholarly criticisms of rape law’s treatment of sexual fraud and sexual coercion); see also Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 114–36 (1998) (critiquing rape law’s treatment of coercive situations as consensual). ↑
  3.  See infra Subsection I.C.1. ↑
  4.  See infra Subsection I.C.1. ↑
  5.  See infra Subsection I.C.2. ↑
  6.  Coley v. State, 616 So. 2d 1017, 1023 (Fla. Dist. Ct. App. 1993) (“The prevailing view is that voluntary consumption of drugs or alcohol does not, without more, render consent involuntary.”); State v. Sherrill, No. 71,253, 1995 WL 18253106, at *3–4 (Kan. Ct. App. June 9, 1995) (finding insufficient evidence that the complainant could not consent despite her testimony that “she had consumed a considerable amount of alcoholic liquor”). See generally infra Subsection I.C.3. ↑
  7.  See infra Subsection I.C.3. ↑
  8.  Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol’y Rev. 431, 443 (2016). ↑
  9.  See infra Section II.B. ↑
  10.  See, e.g., Eric A. Johnson, Trust and the Limits of Trust: Rethinking the Doctrine of Novus Actus Interveniens, 2025 U. Ill. L. Rev. 743, 751–55; Guyora Binder & Luis Chiesa, The Puzzle of Inciting Suicide, 56 Am. Crim. L. Rev. 65, 99 (2019). ↑
  11.  See Michael S. Moore, The Metaphysics of Causal Intervention, 88 Calif. L. Rev. 827, 836 (2000) (“[I]f the defendant coercively supplies the motive for the intervenor’s behavior, then that behavior does not break the causal chain between defendant’s action and the harm.”). ↑
  12.  See Binder & Chiesa, supra note 10, at 70 (explaining that causation in criminal law is “little more than a normative attribution of responsibility for a result”). ↑
  13.  See, e.g., Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121, 123 (1996) (“[C]onsent defeats any rights on the part of others (including the person consenting) that the actor not do the wrong act.”). ↑
  14.  See id. at 124 (“Whether it functions as a ‘moral transformative’ or as a ‘stained permission,’ consent derives its normative power from the fact that it alters the obligations and permissions that collectively determine the rightness of others’ actions.”). ↑
  15.  See, e.g., Boro v. Superior Ct., 210 Cal. Rptr. 122, 123 (Ct. App. 1985) (defendant posed as a doctor and convinced the victim that she needed to have sex with an anonymous donor in order to treat “a dangerous, highly infectious and perhaps fatal disease”). ↑
  16.  See infra Subsection II.C.2. ↑
  17.  See infra Subsection I.C.2. ↑
  18.  The traditional common law definition of rape was “carnal knowledge of a woman forcibly and against her will.” 4 William Blackstone, Commentaries *210. In this formulation, still relevant in roughly half of U.S. states, MacKinnon, supra note 8, at 437 & n.26, the element that the intercourse be nonconsensual (or “against her will”) is an attendant circumstance, see, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1121 n.101 (1986). Attendant circumstances “refer to the objective situation that the law requires to exist, in addition to the defendant’s act or any results that the act may cause.” Model Penal Code § 5.01 cmt. at 301 n.9 (A.L.I., Official Draft and Revised Comments 1985). ↑
  19.  See infra Section I.C. ↑
  20.  Although there are of course varied justifications for the criminal law, many leading theorists agree that blameworthiness is or ought to be the centerpiece of our criminal system. See, e.g., Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 Ohio St. J. Crim. L. 449, 449 (2012); Michael Moore, Placing Blame: A General Theory of the Criminal Law 153–54 (1997); Larry Alexander & Kimberly Kessler Ferzan with Stephen Morse, Crime and Culpability: A Theory of Criminal Law 66–67 (2009). ↑
  21.  See infra Section III.A. ↑
  22.  Ben A. McJunkin, Rape as Indignity, 109 Corn. L. Rev. 385, 447 (2024). ↑

  23.  See Model Penal Code §§ 213.1–213.2, 213.4–213.5 (A.L.I., Tentative Draft No. 6, 2022). ↑

The Promise and Peril of Direct Democracy After Dobbs

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court deconstitutionalized the right to choose abortion, announcing that it was leaving the power to regulate abortion “to the people and their elected representatives.” In the wake of Dobbs, state-level “elected representatives” quickly got to work, resulting in dramatic changes to the abortion access landscape. But increasingly, “the people” have also sought to shape the law directly: voters, using mechanisms like ballot initiatives and referenda, have gone to the ballot box to register their views on reproductive freedom. Many of those initiatives have preserved or expanded access to abortion, demonstrating the potential for direct democracy to counteract troubling facets of the current landscape. In the face of increasingly minoritarian institutions and some courts’ abandonment of their traditional rights-protecting and democracy-enhancing functions, direct democracy seems full of promise.

As this Article reminds, however, direct democracy has a checkered past, which must inform any evaluation of its current potential. For as much as direct democracy has been used to achieve progressive ends, it has also been used to limit minority rights. Indeed, over the last sixty years, those seeking to counteract the gains of the Civil Rights Movement have repeatedly and sometimes successfully turned to direct democracy to do so. This Article reviews that history, which spans issues ranging from affirmative action to same-sex marriage, and mines it for lessons for today.

Several insights emerge from this historical excavation, all of which should inform our understanding of the recent turn to direct democracy to channel popular support for reproductive rights. One insight is that direct democracy can threaten minority rights; there is scant reason to believe that direct democracy will reliably protect the interests of unpopular or historically subordinated groups. But a second insight is that the direct democracy of today differs in critical ways from the direct democracy of even fifty years ago, in part because of the deteriorating health and strength of democratic institutions and the upending of a constitutional order that once gave relatively robust protection to equality-related rights.

Building on these insights, this Article maintains that both the promise and peril of direct democracy must be evaluated in the context of the broader constitutional and democratic landscape. Today’s use of direct democracy to secure reproductive rights poses a challenge to institutions that have failed to channel the popular will. In addition, direct democracy has come to the fore at a moment when the foundations of judicial enforcement of fundamental rights and equal protection are being reexamined. Direct democracy’s success in securing abortion rights represents an important countercurrent to these developments. But meaningfully, this dynamic landscape may contain the groundwork for reexamining—and perhaps reorganizing—the existing equal protection framework. Direct democracy’s success in securing abortion rights may, paradoxically, hasten that transformation.

Introduction

Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.1 1.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2257 (2022).Show More

But the people of the various States may evaluate those interests differently.2 2.Id.Show More

In Dobbs v. Jackson Women’s Health Organization,3 3.Id. at 2228.Show More the Supreme Court overruled Roe v. Wade4 4.410 U.S. 113 (1973).Show More and Planned Parenthood of Southeastern Pennsylvania v. Casey5 5.505 U.S. 833 (1992).Show More on the view that a right to abortion was neither explicit in the text of the Constitution nor rooted in the history and traditions of this country.6 6.Dobbs, 142 S. Ct. at 2242.Show More In casting aside a half century of precedent, the Dobbs majority noted that it was merely returning the power to weigh the competing interests at stake in abortion “to the people and their elected representatives.”7 7.Id. at 2259.Show More

In the wake of Dobbs, the abortion access landscape has changed dramatically as states have moved to clarify their positions on the right to access abortion. But meaningfully, it is not just state legislatures that are asserting their positions on abortion access. Increasingly, voters are also directly registering their views on reproductive freedom at the ballot box.8 8.See Laura Kusisto & Jennifer Calfas, Abortion-Rights Supporters Prevail in Midterm Ballot Measures, Wall St. J., https://www.wsj.com/articles/abortion-rights-supporters-prevail-in-midterm-ballot-measures-11667986139?mod=article_inline (last updated Nov. 9, 2022, at 18:36 ET) (detailing the outcomes of 2022 abortion-related ballot measures).Show More

From blue states like Vermont and New York to red states like Kansas and Missouri, voters have turned to direct democracy to enshrine abortion rights in state constitutions—with considerable success.9 9.See Ballot Tracker: Outcome of Abortion-Related State Constitutional Amendment Measures in the 2024 Election, KFF [hereinafter KFF Ballot Tracker], https://www.kff.org/wo‌mens-health-policy/dashboard/ballot-tracker-status-of-abortion-related-state-constitutional-a‌mendment-measures/ [https://perma.cc/F99S-27U2] (last updated Nov. 6, 2024).Show More Unsurprisingly, direct democracy’s success in protecting reproductive freedom has provoked considerable resistance and efforts to curb direct democracy’s reach. In some states, officials have sought to limit—or block entirely—direct democratic action in support of abortion rights.

Direct democracy, then, has been an important site of mobilization, contestation, and conflict in the post-Dobbs era. In many ways, direct democracy’s deployment as a vehicle for protecting reproductive rights accords with its origins in the Progressive Era, when it was frequently used to circumvent captured state legislatures and courts to secure various economic and employment protections for working men and women.10 10.See infra Section II.A.Show More

But if direct democracy’s early history accords with its contemporary promise as a safeguard of reproductive freedom, its more recent history gestures toward its perils. Rather than advancing progressive causes, direct democracy has more recently been deployed to limit the rights and trample the interests of minorities. For example, after the passage of the Civil Rights Act of 1964, a majority of Californians enacted a ballot measure that counteracted federal antidiscrimination protections by adding a right to discriminate to the state constitution.11 11.Proposition 14 was explicitly designed to override the state’s fair housing act, which had been passed in 1963. Ariela Gross, A Grassroots History of Colorblind Conservative Constitutionalism, 44 Law & Soc. Inquiry 58, 63 (2019). It was later invalidated in Reitman v. Mulkey, 387 U.S. 369, 375–76, 381 (1967).Show More In 2006 and 2010, respectively, in the wake of a Supreme Court decision blessing the limited use of race in higher education admissions,12 12.Grutter v. Bollinger, 539 U.S. 306, 343 (2003).Show More both Michigan and Arizona enacted ballot initiatives banning affirmative action measures in public employment, education, and contracting.13 13.Suzanne Lowe, Mich. Senate Fiscal Agency, September 2006 Ballot Proposal 06-2: An Overview 2 (2006), https://sfa.senate.michigan.gov/Publications/BallotProps/Proposal06-2.‌pdf [https://perma.cc/6CPN-HDHJ]; Michigan Proposal 2: Affirmative Action Ban Initiative (2006), Ballotpedia [hereinafter Michigan Proposal 2], https://ballotpedia.org/Michigan_Prop‌osal_2,_Affirmative_Action_Ban_Initiative_(2006) [https://perma.cc/DSE2-79LV] (last visited Nov. 4, 2025); H.R. Con. Res. 2019, 49th Leg., 1st Reg. Sess. (Ariz. 2009) (codified at Ariz. Const. art. II, § 36); Arizona Proposition 107: Affirmative Action Amendment (2010), Ballotpedia, https://ballotpedia.org/Arizona_Proposition_107,_Affirmative_Action_Amend‌ment_(2010) [https://perma.cc/SH4D-JQBR] (last visited Nov. 4, 2025); see also Schuette v. Coal. to Def. Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 298–99, 312–14 (2014) (plurality opinion) (upholding Proposal 2 amidst claims that it was racially discriminatory).Show More And in 2008, after a Supreme Court of California decision recognizing a state constitutional right to same-sex marriage, Californians enacted Proposition 8, which amended the state constitution to permit legal recognition of only opposite-sex marriages.14 14.See Hollingsworth v. Perry, 570 U.S. 693, 701 (2013).Show More

These episodes have prompted scholars to raise practical and theoretical concerns about direct democracy as a vehicle for policymaking. On this account, direct democracy’s independence from representative government is a double-edged sword. While direct democracy allows voters to evade captured legislatures, it also bypasses structural mechanisms designed to protect minority interests, allowing voters to impose majority will without the typical governmental checks that exist in more traditional policymaking venues. Further, direct democracy’s susceptibility to capture by moneyed interests, coupled with its lack of transparency and limited opportunities for deliberation, amplifies concerns that it may enable the “tyranny of the majority.”15 15.See 1 Alexis de Tocqueville, Democracy in America 410 (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2012) (1835).Show More

This recent history and the concerns it prompts stand in stark contrast to the current moment, when direct democracy is hailed as a means of safeguarding rights imperiled by the actions of conservative courts and legislatures. Indeed, the proliferation of gerrymandering and other efforts to distort the mechanisms of representative democracy, in tandem with judicial actions to curtail or limit rights, has led to renewed interest among progressives in initiatives, referenda, and other mechanisms of direct democracy.16 16.See Rucho v. Common Cause, 139 S. Ct. 2484, 2491–92 (2019) (describing partisan gerrymandering in North Carolina and Maryland); see, e.g., Proposed Amendments for 2020: Proposed Constitutional Amendment #1, Va. Dep’t of Elections, https://www.elections.virgini‌a.gov/proposed-constitutional-amendment-2020/ [https://perma.cc/KU5L-TVXA] (last visited Nov. 4, 2025) (proposing the creation of a bipartisan districting commission).Show More At the same time, conservatives who once embraced direct democracy as a counterweight to the legislative and judicial imposition of minority rights now labor mightily to restrict access to direct democracy—particularly when it comes to abortion.

How should we understand these developments? In a distorted democratic landscape where institutions are increasingly minoritarian and some courts have abandoned their traditional rights-protecting and democracy-enhancing functions, should progressives embrace direct democracy as a necessary corrective to gerrymandering and institutional capture? What can the turn to direct democracy tell us about the relationship between majoritarianism, minority rights, democracy, and the institutional role of the courts today?

This Article takes up these important questions. Using direct democracy mobilization over abortion rights as a point of entry, we examine direct democracy’s status as a safety valve for the preservation of reproductive rights against its complicated history. The contrast between direct democracy’s past and present yields important insights that gesture toward broader questions about the health and strength of democratic institutions. As we maintain, direct democracy cannot be evaluated in the abstract; its promise—and perils—must be considered in light of the current electoral landscape, which, as a result of the Supreme Court’s interventions, is decidedly less representative and less democratic than in previous epochs.17 17.See Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 728, 776–77 (2024).Show More

Just as importantly, direct democracy’s appeal as a mechanism for preserving reproductive rights speaks directly to a shifting jurisprudential landscape that has rescinded fundamental rights and limited protections for underrepresented groups. On this account, part of direct democracy’s appeal as a means of securing abortion rights relates to Dobbs itself—and its potential to completely revamp the constitutional order, with respect to both fundamental rights and our understanding of equal protection.

This Article proceeds as follows. Parts I and II lay a foundation for an examination of direct democracy. Specifically, Part I provides a taxonomy of the forms of direct democracy, and Part II recounts direct democracy’s nineteenth-century origins as a counterweight to federal and state efforts to limit economic regulation and labor protections, as well as its post-Civil Rights Movement evolution as a vehicle for civil rights backlash.

Part III pivots to consider scholarly and juridical responses to the dangers that direct democracy may pose to minority interests. In particular, this Part considers the Supreme Court’s efforts to weigh the benefits of direct democracy as an expression of popular will against equality concerns and the courts’ institutional obligation to protect minority interests.

Part IV returns to the subject of this Article: abortion and direct democracy. As this Part observes, throughout the last half century, when direct democracy measures were successful in countering civil rights gains, they were far less successful in either advancing or curtailing reproductive rights—that is, until the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. In Dobbs’s wake, direct democracy has emerged as a potent means of preserving—and even expanding—abortion rights at the state level. The disjunction between direct democracy’s lackluster history as a vehicle for abortion policymaking and its potent current use to preserve abortion rights speaks to recent constitutional developments that have eroded traditional safeguards for individual rights.

With this insight in mind, Part V considers the shifting dynamics of the electoral and constitutional firmament that make direct democracy especially appealing at this moment. As this Part explains, direct democracy has emerged as a response to critical changes in the electoral landscape—changes that have made representative government less responsive to popular will. Direct democracy speaks to these democratic deficits by allowing the people to register their preferences for reproductive freedom directly, unmediated by the structural impediments of representative government.

But perhaps more profoundly, direct democracy also responds to the seismic changes in the constitutional order that Dobbs has wrought, as well as the changes that the decision may, in time, underwrite. Dobbs fundamentally altered the landscape of fundamental rights and substantive due process by rescinding the abortion right and further cementing a “history and tradition”-focused method of constitutional interpretation; it has also laid a foundation for a profound shift in the structure of equal protection and women’s status within it. In this regard, the emerging turn to direct democracy to secure abortion rights may reflect both practical realities and increasing anxiety about a new, emerging constitutional order.

In view of these developments, Part VI shifts from the theoretical and conceptual to the practical. Recognizing direct democracy’s appeal in this shifting electoral and jurisprudential landscape, we offer a series of prescriptions aimed at optimizing direct democracy’s promise as a vehicle for securing reproductive freedom while minimizing its likely perils. A brief conclusion follows.

  1.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2257 (2022). ↑

  2.  Id. ↑
  3.  Id. at 2228. ↑
  4.  410 U.S. 113 (1973). ↑
  5.  505 U.S. 833 (1992). ↑
  6.  Dobbs, 142 S. Ct. at 2242. ↑
  7.  Id. at 2259. ↑
  8.  See Laura Kusisto & Jennifer Calfas, Abortion-Rights Supporters Prevail in Midterm Ballot Measures, Wall St. J., https://www.wsj.com/articles/abortion-rights-supporters-prevail-in-midterm-ballot-measures-11667986139?mod=article_inline (last updated Nov. 9, 2022, at 18:36 ET) (detailing the outcomes of 2022 abortion-related ballot measures). ↑
  9.  See Ballot Tracker: Outcome of Abortion-Related State Constitutional Amendment Measures in the 2024 Election, KFF [hereinafter KFF Ballot Tracker], https://www.kff.org/wo‌mens-health-policy/dashboard/ballot-tracker-status-of-abortion-related-state-constitutional-a‌mendment-measures/ [https://perma.cc/F99S-27U2] (last updated Nov. 6, 2024). ↑
  10.  See infra Section II.A. ↑
  11.  Proposition 14 was explicitly designed to override the state’s fair housing act, which had been passed in 1963. Ariela Gross, A Grassroots History of Colorblind Conservative Constitutionalism, 44 Law & Soc. Inquiry 58, 63 (2019). It was later invalidated in Reitman v. Mulkey, 387 U.S. 369, 375–76, 381 (1967). ↑
  12.  Grutter v. Bollinger, 539 U.S. 306, 343 (2003). ↑
  13.  Suzanne Lowe, Mich. Senate Fiscal Agency, September 2006 Ballot Proposal 06-2: An Overview 2 (2006), https://sfa.senate.michigan.gov/Publications/BallotProps/Proposal06-2.‌pdf [https://perma.cc/6CPN-HDHJ]; Michigan Proposal 2: Affirmative Action Ban Initiative (2006), Ballotpedia [hereinafter Michigan Proposal 2], https://ballotpedia.org/Michigan_Prop‌osal_2,_Affirmative_Action_Ban_Initiative_(2006) [https://perma.cc/DSE2-79LV] (last visited Nov. 4, 2025); H.R. Con. Res. 2019, 49th Leg., 1st Reg. Sess. (Ariz. 2009) (codified at Ariz. Const. art. II, § 36); Arizona Proposition 107: Affirmative Action Amendment (2010), Ballotpedia, https://ballotpedia.org/Arizona_Proposition_107,_Affirmative_Action_Amend‌ment_(2010) [https://perma.cc/SH4D-JQBR] (last visited Nov. 4, 2025); see also Schuette v. Coal. to Def. Affirmative Action, Integration & Immigrant Rts. & Fight for Equal. by Any Means Necessary (BAMN), 572 U.S. 291, 298–99, 312–14 (2014) (plurality opinion) (upholding Proposal 2 amidst claims that it was racially discriminatory). ↑
  14.  See Hollingsworth v. Perry, 570 U.S. 693, 701 (2013). ↑
  15.  See 1 Alexis de Tocqueville, Democracy in America 410 (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2012) (1835). ↑
  16.  See Rucho v. Common Cause, 139 S. Ct. 2484, 2491–92 (2019) (describing partisan gerrymandering in North Carolina and Maryland); see, e.g., Proposed Amendments for 2020: Proposed Constitutional Amendment #1, Va. Dep’t of Elections, https://www.elections.virgini‌a.gov/proposed-constitutional-amendment-2020/ [https://perma.cc/KU5L-TVXA] (last visited Nov. 4, 2025) (proposing the creation of a bipartisan districting commission). ↑
  17.  See Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 728, 776–77 (2024). ↑
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