In the Dead of Night: The Supreme Court’s Use of the Shadow Docket to Enact a Radical and Hyper-Partisan Agenda

Over the course of two weeks at the end of the summer, in hastily decided rulings released in the middle of the night, the Supreme Court changed the lives of millions through decisions on immigration, the ability of the government to address the COVID-19 pandemic, and abortion rights.

On August 24, a Supreme Court majority refused to block a Texas federal court’s reinstating of former President Trump’s “remain in Mexico” policy, dangerously crossing into interference with the President’s foreign policy powers and putting the lives of thousands of asylum-seekers at risk. Two days later, on August 26, the same majority ruled to end the nationwide eviction moratorium enacted during the COVID-19 pandemic, leaving over six million people on the brink of homelessness as the Delta variant surges. Finally, on September 1, the Court gave Texas the green light to move forward with a law that virtually bans abortions in the state, ignoring Roe v. Wade and 50 years of precedent in the process.

These rulings were made on the increasingly prominent “shadow docket,” a once procedural mechanism that has emerged as a channel for the Court to rule on pressing, controversial legal issues with wide-ranging implications. The below explains the shadow docket, its rise to prominence, and, most importantly, the implications for everyday Americans.