While the just-ended Supreme Court term was less controversial than recent terms — with no confirmation battles, or landmark cases like the 2022 overturning of Roe v. Wade — the court changed in ways that may be overlooked by the public.
According to several Supreme Court experts, the most recent term was marked by a rise in the use of the emergency docket, thanks to an increase in emergency filings by the Trump administration.
The rise of the emergency — or ‘shadow’ — docket
The “shadow docket” is a popularized way of describing when the Supreme Court issues emergency decisions. When issuing these decisions, the court doesn’t follow typical procedure — like holding briefings, hearing oral arguments and issuing detailed opinions.
The emergency application process allows justices to address something urgently, like responding to execution orders.
Decisions issued through the emergency application process have been criticized because the justices do not usually provide context or reasoning along with the ruling.
The process is also under scrutiny because of its frequent use by the Trump administration, which appealed a number of cases this way over the past six months.
While the Supreme Court didn’t hear oral arguments on many flashy cases this year, Ilya Shapiro, a senior fellow at the Manhattan Institute, noted that the justices were frequently part of the news cycle because of the emergency docket cases.
“The court is deciding a record low number of cases on the merits,” he said. “But still, they’re very much in the news and making news. And at least half of that is the emergency docket.”
Steven Vladeck, a law professor at Georgetown University, agreed. He said the Supreme Court has seen an “unprecedented number of emergency applications from the federal government” under the Trump administration.
While the Biden administration filed a total of 19 emergency applications with the high court during its four years in office, the Trump administration has filed 20 in just a few months.
“It’s made for a very, very different kind of term for the court,” he said.
For example, the court issued a unanimous emergency decision in January to uphold the federal law that required the social media app TikTok to be sold to new owners or else it would face a ban in the United States.
Chief Justice John Roberts noted during oral arguments for the recent Trump v. CASA case — which involves birthright citizenship and nationwide injunctions — that cases can move through the court quickly, referencing the speedy turnaround on the TikTok decision.
Peter Loge, a public affairs and political communications professor at George Washington University, said when justices are using the emergency docket they are comparable to emergency medical technicians who are assessing a situation quickly and responding, and not doctors who have a more thorough approach.
“There’s been a real rise in those, and some of those have been pretty substantial decisions with pretty wide ranging impacts. As a policy matter, I think that’s interesting because it’s changing policy sort of on the fly without big explanations,” Loge said.
Shapiro noted that the rise in the number of emergency docket rulings is due to an increase of executive actions from presidents in recent years.
“We’re seeing Congress legislate less and less, and government by executive action more and more,” Shapiro said. “And that leads directly to a lot of this emergency type of litigation challenging federal action.”
The increase in emergency applications has had political and societal consequences, Vladeck said.
“These rulings have enormous impact. They affect a ton of people,” Vladeck said.
Loge noted that it’s the norm for justices to not offer reasoning or explanation behind their rulings in the emergency docket.
When they offer little information about the decision-making process — and since it’s happening more than ever before — the public is less inclined to trust the court, he said.
“You might not like Roe v. Wade, or the Dobbs decision. The arguments are at least all there, and you can argue with the arguments,” Loge said. “With the shadow docket, there are no arguments to argue with. It’s simply a ruling.”
Vladeck agreed, noting that opinions were important not because an individual would agree with the justices’ ruling, but because they could see how they got to the final decision.
“The problem of issuing these kinds of orders with no opinion whatsoever is that there’s no way to know why the court is intervening,” he said. “Is the court intervening because it believes that what the president is doing is legal? Is it intervening because it believes there’s some procedural obstacle to reaching the merits?”
“What we’re deprived of, with rulings with no explanation, is the very basis for assessing the court’s relationship with the executive branch,” Vladeck added.
With an administration like Trump’s that is testing legal boundaries, and a court that is not providing much reasoning when they back him, it can further divide an already-split democracy, they said.
“The court is still independent,” Vladeck said. “I think the issue is more that the court is enabling what a lot of people think is lawless behavior by the president, without explaining why it’s letting this behavior continue.”
Vladeck said the concern among experts is not coming from the idea that the court is becoming less independent, but more so that “the court is abdicating its responsibility to either push back against lawless behavior by the executive, or to explain to folks who think it’s lawless why they’re wrong.”
If the justices wanted to write and provide explanation about their ruling in an emergency case, there’s nothing stopping them. And for cases with far-reaching implications for people across the country, it’s starting to become a concern, he said.
“There are examples of unexplained rulings on emergency applications for much of the last decade,” Vladeck said. “But it’s the volume and the significance that’s really setting these cases apart.”
Politics and the court
Has the Supreme Court become more political? Loge argued that in some ways it has always been political, as the justices are political appointees nominated by the president and confirmed by the Senate. But there is still an understanding that the court is a separate and independent entity.
“It’s always been a bit political, but there’s always been a view of remove,” he said. “There’s always been a ‘yeah, they’re political, but they’re separate. Yeah, they’re political, but they are independent.’’
While the 6-3 conservative majority puts the liberal-leaning justices in the minority on hotly debated issues like abortion, the court truly isn’t that divided.
The justices may have philosophical differences and differing constitutional visions, but in the end, they are ruling on how they interpret the Constitution, Shapiro said, and the court’s higher number of unanimous decisions in recent years proves that they aren’t as divided as it may appear.
An analysis from the Federalist Society found that during the 2022 term, when cases like Dobbs and affirmative action dominated news stories about the court, 48% of decisions were unanimous, which was a significant increase from the number of unanimous decisions the year prior.
Ideological conflicts still happen over big cases, but most of the work done by the Supreme Court is on a “collegial, craftsmanlike, and consensus-seeking level,” Walter Olson at the Cato Institute wrote last month.
Still, as the American public becomes increasingly split over political matters, they start to associate the court more with politics, too.
People need to believe that the court can be independent from a traditional political party for democracy to work, Loge said. The point of an independent court is that it’s not ruling for any one specific body, he added.
“By saying that everything that the court does is a win for one side and a loss for the other, we are saying that the American people are observers of democracy … we’re not participants in a democracy,” he said.
That can become more difficult when elected officials on either side of the aisle say the court is comparable to a political organization, has a bias or is less credible because of that apparent bias, Loge argued.
“You might not like the rulings of this court, you might not like some of the justices on the court, but if the American people stop believing in the legitimacy of the Supreme Court as a whole, then democracy is really at risk,” he said.
The future of birthright citizenship
One of the court’s more high-profile cases of the 2024-2025 term was focused on President Donald Trump’s efforts to end birthright citizenship in the United States.
The Trump v. CASA case went through the emergency docket process. Rather than addressing birthright citizenship, the issue the court addressed was whether federal judges exceeded their power by issuing nationwide injunctions on the executive order to end birthright citizenship.
The 6-3 ruling that they had exceeded their authority was decided along ideological lines and was viewed as a win by the Trump administration.
Shortly after the Trump v. CASA ruling was issued, a federal judge banned Trump from enforcing the order to ban birthright by instead allowing a class action lawsuit to proceed.
A look ahead
Another case for the next term that both Loge and Shapiro are closely following was led by Vice President JD Vance.
Vance filed a lawsuit in 2022, while he was a Senate candidate in Ohio, challenging campaign finance restrictions.
The Supreme Court agreed to hear the challenge over limits to what political parties can spend on campaigns. Vance, the National Republican Senatorial Committee and the National Republican Congressional Committee say the federal limits are a violation of the First Amendment and are looking to end the limit on how much the political parties can spend on an individual candidate.
Shapiro said that while there was conversation in the lead up to the November 2024 election that if Trump won, Alito and Thomas would potentially retire to allow Trump to nominate younger conservatives to replace them, it likely won’t happen for a while.
“Both Alito and Thomas, who are the oldest justices, they like where they are. They’ve never had more influence, more power, so why would they leave at the top of their game?” Shapiro said.
He noted that to the extent that politics plays into a justice’s retirement, Republicans may be having quiet conversations about keeping their hold over the Senate and White House in coming elections, and that could influence Alito or Thomas’ decision to stay.
“If it looks like the Republican brand is really low and there’s much more likely than not a Democrat that wins the White House in 2028, at that point I could see Thomas retiring … in June ‘28,” Shapiro said. “We would have another election year confirmation battle.”