Have you ever had a big decision made about your life—what rules you follow, where you can go, what you’re allowed to do—without anyone explaining why? Now imagine that happening to an entire country, overnight, with no public debate.
You’ve probably heard of major Supreme Court cases: Brown v. Board of Education, Roe v. Wade. These were landmark decisions argued publicly, debated for months, and explained in long written opinions. But there’s another track. Quieter. Faster. And increasingly used for decisions that affect millions of people. It’s called the shadow docket.
In this lesson, you’ll learn what the shadow docket is, why legal scholars across the political spectrum are concerned about it, and how to evaluate who’s telling you this story and why that matters.
Did You Know?
During the combined 16 years of the Bush and Obama administrations, the federal government asked the Supreme Court for emergency relief eight times—roughly once every two years. By the 2024-25 term, the emergency docket had grown to more than 113 matters in a single term. Sources: Vladeck, The Shadow Docket, 2023; SCOTUSblog, 2025
Watch: The Shadow Docket, Explained
This short video (approx. 2 minutes) breaks down the two tracks the Supreme Court uses to decide cases and explains why legal experts are raising concerns about the shadow docket’s growing use. As you watch, pay close attention to the specific examples mentioned: gerrymandering, abortion and executive actions. Hold onto one question: Who made this video, and what might that tell you? You’ll dig into that in the media literacy section.
Cheat Sheet: Key Terms
- Supreme Court. The highest court in the United States, made up of nine justices appointed for life. It has the final say on whether laws and government actions follow the Constitution.
- Merits docket. The court’s standard public process: both sides submit written arguments (briefs), lawyers present oral arguments, and the justices issue a detailed written opinion explaining their reasoning. Famous cases like Brown v. Board were decided this way.
- Shadow docket. A term for court orders and rulings issued outside the full public process, often quickly, without oral arguments, and with little or no written explanation of the reasoning behind the decision.
- Emergency relief. A request to pause or allow something while a full legal case plays out, like stopping a scheduled execution or blocking a new law from taking effect. The shadow docket was originally designed for these genuinely urgent situations.
- Transparency. In government and law, this means making decisions and the reasoning behind them accessible to the public so people can understand, question and evaluate them.
- Judicial activism. A term used when judges or courts are seen as going beyond interpreting the law and instead actively shaping policy or expanding their own power. Critical thinking note: This label does political work. Conservatives often use it to criticize liberal courts; progressives use it to criticize conservative ones. Pay close attention to who calls something “judicial activism” and ask yourself why they’re using that word at that moment.
Two Tracks, Two Levels of Transparency
The Supreme Court handles thousands of requests every year. The full merits process—briefs, oral arguments and detailed written opinions—is reserved for cases the justices agree to decide completely. That process is public and slow by design.
The shadow docket, a term coined by law professor William Baude in 2015, originally covered routine orders and genuine emergencies: pausing an execution or temporarily blocking a law while a case worked its way through the courts. The shadow docket was fast, low-profile and rarely consequential for anyone outside the immediate case.
Why Critics Are Worried
Legal scholars across the political spectrum have documented a sharp increase in the Supreme Court’s use of shadow docket orders for major policy questions: immigration enforcement, vaccine mandates, abortion access and redistricting. When consequential issues are decided without full briefings or written reasoning, it becomes much harder for lower courts, lawyers, lawmakers and the public to understand what the law actually means going forward.
Some call this a form of judicial activism: the court inserting itself into major policy debates without doing the transparent work the merits docket requires. Others argue the court is simply responding to genuine emergencies created by aggressive government action. Both sides agree that transparency matters. They disagree sharply on whether the current court is providing it.
Discussion Questions
Personal Connection: Think about a rule in your school or community that affects you but was decided without your input or a clear explanation. How did that feel? What does that experience tell you about why transparency in decision-making might matter at a national level?
Civic Reasoning: The video argues that “monumental decisions made in the shadows still affect us all.” What does it mean for a democracy when major decisions are made without public explanation, and who do you think bears the most risk when that happens?
Multiple Perspectives: The Supreme Court is meant to interpret the law in service of all Americans, regardless of party. With that in mind, does it matter if one political party benefits more than another from a particular shadow docket ruling? Why or why not?"
Historical Context: Major cases like Brown v. Board of Education went through the full public merits process: years of arguments, briefs and detailed opinions. How might American history have looked different if those decisions had been made quickly and quietly, without public oral arguments or written explanations?
Power and Accountability: Unlike members of Congress or the president, Supreme Court justices are never elected, serve for life, and can only be removed through impeachment—making transparency in their decision-making especially important. Given that, how important is it that the public can read and evaluate how justices reach their decisions? What happens when the public can’t do that?
Media Literacy Challenge
The video was made by the Brennan Center for Justice, named after Justice William J. Brennan Jr., widely considered one of the most influential liberal justices in Supreme Court history. Before you decide how much weight to give its argument, it’s worth doing some digging.
Source Check: Search "Brennan Center for Justice, who funds it?" and "Brennan Center political leaning." What did you find? Does knowing who made the video change how you interpret its argument? Does a source having a perspective automatically make it wrong?
Perspective Hunt: Here are three legal organizations that hold different views on the Supreme Court and judicial power. Research one, then compare its position on the shadow docket (or judicial transparency generally) with the Brennan Center’s.
Name Check: The Brennan Center is named after a liberal justice. The Federalist Society takes its name from a founding-era political philosophy. What do those naming choices signal about each organization’s values? Does the name of a think tank tell you anything useful about its point of view?
Word Watch: The Brennan Center video uses the word “disturbing” to describe the trend. Find two news articles covering the shadow docket: one from a left-leaning outlet (try The Atlantic or Vox) and one from a right-leaning outlet (try National Review or The Federalist). What words does each use? What do those choices tell you about how each outlet is framing the story?
Claim Check: The video says the court “has increasingly used the shadow docket” for important public issues. Is that a fact, an opinion, or both? What data or evidence would you need to verify it, and where would you look?
Extension Activity: Build a Source Profile
Your Turn to Decide—goes deeper if time allows!
Choose one of the organizations from the Perspective Hunt (or find your own). Research it using at least two independent sources, not just the organization’s own website. Then complete a source profile using this framework:
Share your profile with a partner who researched a different organization. Together, discuss: Where do you agree? Where do you disagree? Can you trust a source that has a clear point of view? What’s the difference between advocacy and misinformation?
The Supreme Court: Balancing the Branches Lesson Plans
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Andy Kratochvil is a proud member of the AFT Share My Lesson team, where he’s passionate about discovering and sharing top-tier content with educators across the country. He earned his bachelor’s degree in political science and French from California State University, Fullerton, and later completed... See More
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