The Supreme Court erodes its authority on the shadow docket
By Adele Rutherford · Reporting from Atlanta ·
As the Supreme Court convenes its new term, relying on emergency shadow docket rulings to grant executive relief damages the institutional legitimacy that John Roberts seeks to protect.
Procedure is where power actually lives
The United States Supreme Court begins its new term on Monday, October 5, 2026. Chief Justice John Roberts and eight colleagues will call the court into public session precisely at 10 a.m. EDT. They return to a bench besieged. A Gallup poll in July showed job approval slumped to a record low. A Fox News survey revealed that 45 percent of respondents believe the justices are too conservative. Meanwhile, U.S. Marshals reported 370 threats made to federal judges as of July 1. Justice Amy Coney Barrett told a House committee that the threat level is high. She noted wearing a bulletproof vest away from the court and experiencing a swatting incident at her home over the summer. Justice Samuel Alito remains on the bench.
Thomas Dupree, a former Justice Department official, noted that the chief justice is in a tough position. As an institutionalist, Roberts tries to buck the tide by hewing to traditional norms. Yet the mechanism of this court has shifted beneath those traditions. Georgetown University law professor Stephen Vladeck observes that emergency appeals have increased during the Trump administration while argued cases have decreased. Vladeck notes that the court now issues twice as many rulings on emergency applications as on the merits docket. Decisions on the emergency docket arrive quickly, with limited briefing, no oral arguments, and little explanation. By contrast, merits cases require months of work and formal argument. The administration of President Donald Trump won over 70 percent of its emergency cases before the Supreme Court since 2025. That rapid shadow docket is the real instrument of executive power today, echoing the polarization that deepened after decisions like Citizens United v. FEC (2010-2014) altered how the public views the boundary between law and politics.
When the executive adopts the Court-packing plan by other means
The temptation to bend judicial machinery to political ends is an American perennial. Today’s executive branch has bypassed the crude geometry of the Court-packing plan — the failed 1937 legislative initiative by Franklin D. Roosevelt to add justices to secure favorable rulings on New Deal legislation. Instead of enlarging the bench, the administration masters the shadow docket. It leapfrogs lower appellate courts to secure emergency relief without the friction of full review. Solicitor General D. John Sauer has asked the court to decide the lawfulness of efforts to suspend asylum at the border, block Department of Defense policies on transgender service members, and reverse lower court rulings against the appointment of acting U.S. attorneys in New York and Nevada who bypassed Senate confirmation.
Donald Trump posted on Truth Social on September 14 regarding Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. He wrote that they are not the people he interviewed to serve and are merely a shell of their original selves. He added that the court’s unwillingness to do the right thing for the country will go down negatively in history. Stanford University law professor Pam Karlan notes that the administration avoids cases it might lose while pushing its broader agenda upward. When a Washington Post/Ipsos poll finds that 46 percent of Americans think the justices rule on administration policies based on political views while only 25 percent see the court as ruling based on the law, the legitimacy deficit is plain. Justice Elena Kagan told a congressional panel in July that criticism is fair game but political figures trying to intimidate judges cross a line. At a judicial conference, she insisted that the court is not simply rubber-stamping the administration. But procedure governs power, and a 70 percent emergency win rate speaks louder than oral arguments.
The docket before the bench
The merits docket opening this week is weighed down by foundational disputes. The first case from the bench involves a federal-state environmental dispute concerning holding oil and gas companies liable for climate change harms. Suncor Energy v. County Commissioners of Boulder County involves a lawsuit filed in state court by Boulder County and Exxon Mobil. The legal question is whether federal law prevents Boulder County from suing energy companies in state court for deceptive marketing of fossil fuels. Lawyers for Exxon and Suncor stated that such suits would effectively impose a carbon tax and bankrupt the industry. Justice Samuel Alito recused himself from the case via a letter sent Monday, having listed stocks in ConocoPhillips and Phillips 66 on his financial disclosure.
The docket also includes St. Mary Catholic Parish v. Roy, testing Colorado’s universal preschool program, which provides funding for four-year-olds but requires equal opportunity regardless of sexual orientation or gender identity. St. Mary Catholic Parish seeks state funding while refusing to admit LGBTQ students, asserting free exercise rights under the First Amendment. In December, the court will hear arguments on whether state and local bans on semi-automatic weapons like AR-15s violate the Second Amendment, with former Solicitor General Don Verrilli Jr. noting their rapid rate of fire, while millions of Americans own them. Other major cases address voting rights and proof of U.S. citizenship regarding an Arizona rule, and immigration matters including Department of Homeland Security v. D.V.D. regarding third-country deportations.
The court cannot survive as an arbiter of American life if its primary output is emergency shadow-docket relief that dispenses with briefing and argument to accommodate executive haste. Legitimacy is a capital stock that spends fast and refills slowly. This bench is burning its remaining reserve on the quick win.