The Emergency Docket Explained, and Why Both Parties Complain About It

There is a rule of American politics that has never failed: whichever party just lost at the Supreme Court has discovered a deep concern about how the Court works. The concern is sincere for roughly one news cycle and disappears the moment the same procedure helps its own side. Nowhere is that rule more visible than in the argument over the emergency docket.

Let us do what the emergency docket's critics rarely do, which is define it, trace its sources, and test the complaints against the facts. The thesis is this: the emergency docket is a necessary feature of any court of last resort, it has grown for reasons that have little to do with which party holds the White House, and the best reform is not to abolish it but to attack the cause of its growth, which is the practice of universal injunctions. The partisans on both sides are half right, and half right is where an honest account begins.

Definitions

An emergency application is a request filed with the Supreme Court asking it to act quickly, before a case has run its normal course. The most common request is for a stay, an order pausing a lower court's decision or a government policy while appeals continue.

An injunction is a court order requiring a party to do something or to stop doing it. A court may issue a preliminary injunction early in a case to prevent harm while the case is decided.

An injunction pending appeal is an order the Court may issue to preserve the situation while an appeal is heard.

The circuit justice is the justice assigned to oversee a particular federal judicial circuit. Each of the nine is responsible for one or more circuits, and emergency applications from a circuit go first to its justice.

The merits docket is the Court's regular case load: cases granted review, fully briefed and argued, and decided in a signed opinion. The emergency docket, also called the interim docket, is everything else that needs a quick answer.

Where the power comes from

The Court's authority to act on emergency applications is old. The All Writs Act, which traces back to the Judiciary Act of 1789 and appears in modern form at 28 U.S.C. section 1651, authorizes federal courts to issue writs "necessary or appropriate in aid of their respective jurisdictions." Supreme Court Rule 22 governs applications to a single justice, and Rule 23 governs applications for stays.

The procedure is simple. A party files an application with the circuit justice. The circuit justice can rule alone, but in significant cases almost always refers the question to the full Court. The justices ask the other side for a response, usually within days, and then vote. The ruling comes by order, sometimes with a short explanation, sometimes with none, and sometimes with written dissents.

That is a short path compared with the ordinary one, which Four Votes to Hear a Case, Five to Win It, Inside the Supreme Court's Docket describes, which takes the better part of a year from a grant of review to a decision. The difference is the point. Some disputes cannot wait for a year: an execution scheduled for next week, an election rule that must be settled before ballots go out, a government program a court has frozen.

The test for a stay

What does the Court look at? The standard draws on Nken v. Holder (2009), which restated the traditional stay factors, and Hollingsworth v. Perry (2010), which applied them to a stay request at the Supreme Court. In summary form it has several parts.

1. A reasonable probability that four justices will vote to grant review of the case, since the Court would not stay a decision it will never examine.
2. A fair prospect that a majority will reverse the lower court's decision.
3. A likelihood that the applicant will suffer irreparable harm without a stay, meaning harm that money or a later judgment cannot repair.
4. A balance of the equities, which weighs the harm to the other side and the public interest in the outcome.

Four factors, four judgments, each a call about the future. That is the heart of both the usefulness and the controversy. The Court is predicting the merits without having heard the merits, and doing it in days.

The name: "shadow docket"

The phrase "shadow docket" is now so common that people forget it was coined as a scholarly description. William Baude, a law professor, used it in a 2015 article, "Foreword: The Supreme Court's Shadow Docket," in the NYU Journal of Law and Liberty. He meant the Court's orders and summary decisions made without full briefing and argument, a category that included emergency applications and some other kinds of orders. His observation was that the Court's important decisions were increasingly happening outside the regular merits process.

Some justices dislike the label, and with some reason. These orders are published, the votes are often recorded, and nothing is hidden in the dark. "Interim docket" is a more neutral term. But the name stuck, because it captures a real concern: fast decisions with little explanation, made without the discipline of full argument.

The strongest case against the emergency docket

Here is the critique at its best, stated as its defenders would accept it.

"The Court's legitimacy depends on explaining its decisions. A decision made in a week, on a partial record, often without any written reasoning, cannot be explained and cannot be tested. Lower-court judges are told to follow these orders, yet they cannot tell what rule the Court has adopted. When the Court uses an interim order to let a major government policy take effect, it effectively decides the merits before the merits are heard. And whichever party benefits from the practice learns to rely on it."

There is truth in all of that. Lower courts have complained that unexplained orders leave them guessing. Justices have written in dissent that the Court's interim orders amount to decisions on the merits made with insufficient care. And the Court itself has, at times, taken a case that came up on an emergency application and set it for full argument, which is an acknowledgment that the first pass was not enough.

Both parties complain, and the record proves it

The partisan complaint is predictable, but the history is more interesting than the talking points.

During the Obama administration, in February 2016, the Court stayed the Environmental Protection Agency's Clean Power Plan pending review in the lower courts, by a vote of five to four. The order paused a major regulation before any court had ruled on its merits. Defenders of the regulation complained loudly, and critics of the regulation pointed to the Court's reasoning on irreparable harm. The Court's later decision in West Virginia v. EPA (2022) is a separate case, but the 2016 stay shows how an emergency order can shape policy for years.

During the Biden administration, the Court used the emergency docket in several high-profile cases. In 2021, in Alabama Association of Realtors v. Department of Health and Human Services, it vacated a stay and ended a nationwide eviction moratorium issued by the Centers for Disease Control and Prevention. In January 2022, in National Federation of Independent Business v. Department of Labor, it stayed an Occupational Safety and Health Administration rule requiring large employers to mandate vaccination or testing. And in September 2021, in Whole Woman's Health v. Jackson, it declined to block a Texas law restricting abortion, in an unsigned order over four dissents.

Administrations of both parties, including the first Trump administration, have also asked the Court to pause lower-court injunctions against federal policy. The complaints from the left when the Court acted sounded very much like the complaints from the right during the Obama and Biden years, and for the same reason: the side that loses an interim order says the Court is acting hastily and without enough explanation.

The pattern teaches a lesson. When the same procedure is attacked by whichever side loses, the procedure is probably not the problem. The problem is something else, and the people who are angry about the procedure are really angry about the outcome. Conservatives should be especially careful on this point, because we are not immune to the temptation. Many conservatives welcomed the realtors' case and the vaccine-or-test case, and criticizing the process when the result goes the other way is exactly the inconsistency we accuse our opponents of.

What is actually driving the docket's growth

If the procedure is old and both parties use it, why has the emergency docket grown? The answer is not primarily about the justices. It is about what lower courts do.

Universal injunctions. For most of American history, when a federal court found a policy unlawful, it enjoined the government from enforcing the policy against the plaintiffs in the case. In the second half of the twentieth century, and increasingly in recent decades, individual district judges began to issue injunctions that blocked a policy for everyone in the country, not just the people who sued. Law professor Samuel Bray described the practice and questioned its legitimacy in a 2017 Harvard Law Review article, "Multiple Chancellors: Reforming the National Injunction." Justice Thomas raised the same concern in a concurrence in Trump v. Hawaii (2018). We trace the history in Universal Injunctions Barely Existed Before 1963, So Where Did They Come From.

Think about the incentives. If a single district judge anywhere in the country can freeze a nationwide policy, then every administration, of either party, has to run to the Supreme Court for relief, because the alternative is that one judge's ruling governs the entire country while the appeals take a year. And every challenger has the opposite incentive: find the most favorable judge and ask for a nationwide order. Each side files where it expects to win. The emergency docket is the pressure valve.

In June 2025, in Trump v. CASA, the Court held that universal injunctions likely exceed the equitable authority of the federal courts under the Judiciary Act of 1789. That ruling did not end the problem, since plaintiffs have other tools, such as class actions and suits by states, but it addressed the root cause the right way, through law rather than through a thicket of emergency orders.

Speed of modern litigation. Policies are challenged within hours of being announced, often before they take effect. The lower courts act quickly, so the government and challengers alike have little time. The Court must respond at the same pace or abdicate its role.

More executive action, less legislation. When Congress cannot pass laws, presidents govern through executive orders and agency rules, which are easy to challenge and easy to freeze. The more policy is made by the executive, the more it ends up in court on a rush basis. This is a separation-of-powers problem that no change in Court procedure will cure. For the broader point, see The Major Questions Doctrine Explained, From Tobacco to the Power Plants.

The numbered answer

Here is the argument in order.

One. Some emergency power is unavoidable. A court that cannot act quickly when a life, an election or the status quo is on the line is not a court of last resort. Even the most severe critics concede that a stay of execution, for instance, must be decided in days.

Two. The Court has used the power more as the lower courts have used theirs. The growth tracks the rise of nationwide orders, not a change in the Court's appetite.

Three. The legitimate complaint is about explanation, not existence. The Court should say more when it does act. A brief written statement of the standard applied would help the lower courts and the public.

Four. The best reform attacks the cause. Narrow the scope of lower-court injunctions to the parties before the court, and the number of emergency applications falls without taking away a necessary tool.

Five. The partisans should be consistent. A conservative who cheers a stay when it freezes a rule he dislikes and howls when the same procedure freezes one he likes is not making an argument. He is rooting.

Measuring it against the Founders

The Founders knew that courts must sometimes act quickly. The common law inherited from England had writs of injunction and of prohibition for urgent cases, and the Judiciary Act of 1789, passed by the first Congress, gave the federal courts the authority to issue writs necessary to their jurisdiction. The problem the Founders worried about was not speed. It was power exercised without limits.

Federalist 78 tells us the judiciary has neither force nor will, only judgment, and its judgments are accepted because they are reasoned. A court that acts by order without explanation tests that premise, and the Chief Justice's own metaphor of umpires calling balls and strikes, which conservatives still argue over in Roberts Said Judges Call Balls and Strikes. Conservatives Still Argue Over It, is hard to sustain when the umpire declines to say what the call was. That is a call for the Court to explain itself more often. It is not a call to take away the interim power, which has been part of American practice since the beginning.

The case in brief

1. The emergency docket handles applications for stays and injunctions that cannot wait for the regular process, resting on the All Writs Act and the Court's rules.
2. The test asks for a reasonable probability of review, a fair prospect of reversal, irreparable harm and a balance of the equities.
3. William Baude coined "shadow docket" in 2015, and the complaints change sides with the White House, as the Clean Power Plan stay, the eviction moratorium and the vaccine-or-test rule show.
4. The docket's growth owes most to universal injunctions, which push every national dispute to Washington, and Trump v. CASA (2025) addressed that cause.
5. The sound reform is more explanation and narrower injunctions, not abolition of a tool every court of last resort needs.

What you can do: look up the Court's emergency applications on its website, read one order and the dissent, and decide whether the Court explained enough for you to know the rule it applied.