Inside the Five Days That Remade the Supreme Court

What It Covers

NYT reporters Jodi Kantor and Adam Liptak reveal 16 pages of confidential Supreme Court correspondence showing how five days of private justice-to-justice memos in February 2016 — centered on Obama's Clean Power Plan — created the shadow docket system now reshaping presidential power across immigration, spending, and agency regulation.

Key Questions Answered

• •Shadow Docket vs. Merits Docket: The standard Supreme Court merits process involves multiple briefing rounds, oral arguments, in-person deliberations, and 10–15 draft exchanges over roughly one year, producing reasoned opinions up to 100 pages long. The shadow docket bypasses every step, producing rulings in days with little or no written reasoning — and the court has used it 20 times in one year alone.
• •Partisan voting amplification: Political scientists find measurably higher partisan voting on the shadow docket than on the merits docket. Republican-appointed justices vote more consistently along party lines under time pressure. A concrete example: the court ruled against Biden on three emergency applications, then ruled in Biden's favor on all three when those same cases returned through full merits deliberation.
• •Nominally temporary, practically permanent: Shadow docket orders are framed as temporary holds while litigation continues, but their real-world consequences are often irreversible. When the court permits deportations, aid withholding, or mass firings under emergency orders, reversing those outcomes — even if the court later rules differently — becomes practically impossible, making the "temporary" framing functionally misleading.
• •Institutional legitimacy tied to written reasoning: Supreme Court legitimacy rests on justices showing their work through written opinions, since justices are unelected and serve for life. As shadow docket use expands and unexplained rulings multiply, public trust erodes. The court's approval ratings are already at recorded lows, and continued reliance on brief, unreasoned emergency orders accelerates that decline.
• •Roberts memo reveals non-legal motivations: Chief Justice Roberts' opening memo explicitly cited frustration with EPA's behavior after a mercury-emissions ruling, arguing the agency had rendered a prior court decision meaningless. Recognizing this pattern, understand that shadow docket decisions can be driven by institutional grievance and power-struggle dynamics — factors never disclosed in the sparse public orders that emerge from the process.