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Media Asset
National Constitution Center’s Constitution Daily Blog – The Supreme Court’s emergency docket steadily draws more attention, by Scott Bomboy
Big Constitutional Question
Does the Supreme Court’s use of the emergency docket align with its role as outlined in Article III of the Constitution?
Headline Story
Not all the Supreme Court’s significant actions come in the form of merits case decisions after full briefing and oral argument. In recent years, orders of the Court on emergency actions and other matters have grown in frequency and importance.
One recent example of a case in front of the justices as part of its interim or emergency docket involved the fate of mail-order access to mifepristone, a medication used as part of a regimen to end pregnancies, while related litigation works its way through the lower courts. In particular, the Court considered two emergency petitions on an expedited basis: GenBioPro v. Louisiana and Danco Laboratories v. Louisiana. In a May 2026 emergency order, the Supreme Court temporarily preserved nationwide access to mifepristone through telehealth and mail delivery while the litigation continues in the lower courts.
While merits cases at the Supreme Court take time to develop, the expedited mifepristone cases are typical of the current state of the emergency docket. Critics of the growing number of emergency applications to the court refer to this set of cases as the court’s “shadow docket,” a term coined by law professor William Baude in 2015 to describe what he called “a range of orders and summary decisions that defy its normal procedural regularity.” But not everyone agrees with that term and its definition, with some arguing that the practice isn’t new and that it serves important purposes.
Article Focus
Scholar Perspectives
The following scholar perspectives were taken from the We the People Podcast: Jonathan Adler and Stephen Vladeck Debate the Use of the “Shadow Docket” on the Roberts Court from May 14, 2026. The clips below are related to the perspectives shared in the chart.
Scholar Perspectives
Scholar
Key Ideas & Quote
Why It Matters
“The Supreme Court, more so than the other branches, is a reactive institution. It responds to things that are filed by litigants. It responds to things that are going on or that have occurred in the lower courts, or that occur elsewhere in the legal system. And so what I think we see in the rise of what we refer to as the shadow docket, or the part of the shadow docket that has prompted so much attention and concern, is a reflection of what's going on more broadly. That is to say, Congress is less active at legislating, less aggressive or proactive in defending its own institutional prerogatives, less involved in revisiting and monitoring the enforcement and application of the statutes it enacts, and the executive branch filling that vacuum.”
Adler’s quote situates the rise of the “shadow docket” not as an isolated judicial choice, but as a symptom of broader institutional dynamics. He suggests that the court is being reactive in its use of emergency orders because of the gaps left by the other two branches. Therefore, his argument suggests that this debate is really about broader institutional concerns about who governs, how conflicts reach the court, and when (and how) the court should resolve those conflicts left unresolved by the political branches of government.
“Where I really start getting exasperated and concerned is that the court is intervening so much more often than ever before...not just in a quantitative sense, but in a way in which it's not usually explaining itself. Very, very few of these decisions come with opinions of the court. Some of them are completely unexplained other than a boilerplate order.
But also...we have this added phenomenon of the court expecting lower courts to divine the tea leaves of unsigned, unexplained orders and going so far...of accusing lower court judges of defying the Supreme Court for not properly reading between the lines. And so it seems to me that you can think that the Supreme Court is justified in intervening in these cases, many, all, some of them. But the way that the court, I think, could dispel the charge that it's doing so and playing partisan political favorites in the process, is if it were providing coherent applications of neutral legal principles that were then accessible to lower courts, to people...”
Vladeck outlines his concerns about the “shadow docket” here that stem from the lack of reasoned explanations accompanying these emergency orders. This practice, he argues, reduces transparency and denies the lower courts, the parties, and the public a clear record of the court’s reasoning. Since many of these cases have major implications, doing so without explanation amplifies this problem. Overall, Vladeck argues that these emergency orders undermine judicial accountability, harm the court’s legitimacy, and often result in concrete legal harms.
Primary Source Spotlight
Download Think, Talk, Create [PDF]
Student Questions
- The article describes disputes over the Supreme Court’s “interim” or “emergency” docket (sometimes called the “shadow docket”). From a constitutional perspective, what are the arguments for and against the court resolving major legal questions via emergency orders rather than full merits proceedings (cases with full briefing participation from amici curiae or friends of the court and oral argument before the justices and the public)? Use the blog’s examples (mifepristone petitions, stays, and administrative stays) to support both sides.
- Also consider the terms “interim”, “emergency” and “shadow” themselves. What is the significance of using these terms when describing the non-merits docket?
- Identify three specific emergency docket matters mentioned in the blog post. For each, state:
- The case name
- The procedural action the court took
- The date or timeframe the action occurred
- Which constitutional principles are implicated by the emergency docket described in the blog? Consider: Article III powers, separation of powers, due process, and federalism. Pick two of these and explain how specific facts from the blog connect to those doctrines.
Student Choice Options
- Record a 3–4-minute mini-podcast episode that highlights the main arguments surrounding the “shadow docket”. Make sure you include a hook to engage the listeners, explain the key takeaways of the arguments on both sides, and share the big civic takeaway: why this conversation matters.
- Write a 250-word op-ed article for a student newspaper arguing for or against the increased use of the emergency docket, grounded in evidence from the blog post and/or podcast clips. Optional: include an image to support your position and ensure your title clearly outlines your perspective.
- Use the Scope of Agreement protocol to assess the extent to which you agree with Stephen Vladeck and Jonathan Adler’s arguments from the podcast clips. Make sure to include the argument they make, the evidence from the podcast to support those arguments, and why you agree or disagree to the extent you do.
- Note to teachers: Students may use this protocol to then engage in a civil dialogue about the topic.
Beyond the Headlines
- Interactive Constitution
- Emergency Docket Cases
- GenBioPro v. Louisiana (2026)
- Danco Laboratories v. Louisiana (2026)
- SCOTUSblog
- “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic” by Steve Vladeck (May 2023)
- “Mifepristone Returns to the Shadow Docket” by Jonathan Adler (May 2026)
- We the People Podcasts
