The Supreme Court has quietly become a government by anonymous ballot, deciding more consequential cases in secret than in open court for the first time in modern history.

"The result is a body that looks less like a Supreme Court and more like a Royal Court rubber stamping the madness and folly of the Trump Administration."

— Rep. Jamie Raskin, Democratic sponsor of shadow docket transparency legislation

The Supreme Court crossed a threshold last October that almost nobody noticed. In its final term ending that month, the justices issued more decisions through their shadow docket than through the traditional merits docket where cases are argued, deliberated, and published with full opinions. Sixty-three shadow docket orders versus 56 merits opinions. The high court had become a government by anonymous ballot.

ProPublica conducted the analysis, combing through two decades of Supreme Court rulings and comparing emergency applications against signed decisions. Legal scholars told them it is likely the first time in modern history that so many consequential decisions were made in secret by the court's nine members. The implications cut to the core of how American law is made.

The shadow docket operates as a fast track. Cases bypass months of scheduling, skip oral arguments, and carry minimal briefing. Justices vote without revealing how they landed, and they rarely cite legal precedent or explain their reasoning. Only 17 percent of shadow docket votes had any public record of a vote or opinion, according to the analysis.

For decades, the emergency docket handled routine matters: procedural requests, extensions, stays of execution. What separated these from the shadow docket was that the substantive applications asked the full court to intervene in the traditional appeals process, to stay a lower court order, to reverse a ruling on the fly. The numbers for those cases always lagged behind merits decisions. Until now.

Translation: the court found a way to decide the most consequential cases of the country while hiding the votes of the people making them.

The modern shadow docket was born in 2016 when the court issued an emergency stay against the Obama administration's Clean Power Plan. Internal papers obtained by The New York Times showed that liberal justices at the time warned Chief Justice John Roberts that deciding the case on an emergency basis broke with longstanding precedent. The conservative justices argued forcefully that the plan would eventually be overturned by the court anyway and that keeping it in place would burden the energy industry.

The precedent was broken. Then it was abandoned.

Under the current Trump administration, the shadow docket has become the vehicle of choice for reversing lower court rulings. The Trump administration filed 32 emergency docket petitions in 2025 alone, according to a Brennan Center for Justice analysis. By comparison, the Obama and George W. Bush administrations together filed just eight such petitions over 16 years. The court's conservative majority has increasingly agreed to act.

The consequences have been concrete and immediate. In June 2025, the court intervened to allow the deportation of eight men to South Sudan after a lower court had ruled they were entitled to due process. The majority issued no opinion. The men were sent abroad. Three months later, the court authorized immigration agents to stop people based on racial and ethnic characteristics while litigation against the practice continued. Justice Brett Kavanaugh wrote a rare shadow docket opinion defending the decision, arguing that people in the country legally would be "free to go after the brief encounter." ProPublica found more than 170 American citizens who had been stopped and detained under these "Kavanaugh stops." More than 50 Americans were held even after ICE agents learned of their citizenship, and almost all of them were Latino.

In May, the court allowed Louisiana to immediately redraw its electoral map mid-election, eliminating one of two majority-Black voting districts. That map is now in place for the 2026 midterms, part of a nationwide Republican redistricting effort that Trump personally encouraged.

Stephen Vladeck, a law professor at Georgetown and Supreme Court analyst, told ProPublica: "The patterns show a court going out of its way to enable Trump." He called the findings a devastating blow to the court's credibility, saying they reinforce the appearance that justices are voting on political preferences rather than legal arguments.

The shadow docket carries another advantage for those who want to make big decisions quietly. Unlike the merits docket, which follows a predictable summer "decision season" that draws intense press coverage, shadow docket rulings can come at any time, including after the court has issued its final merits decisions and public attention has faded. The justices have increasingly used this timing to their advantage.

Even the Chief Justice has helped build the machine. Roberts once joined a Kagan dissent assailing the shadow docket. But ProPublica's analysis found that he now refers more substantive cases for full court votes than any other justice, going from just one referral in the 2005 term when he joined the court to nearly half of all referrals in the last term.

Justice Ketanji Brown Jackson made the case plainly in an April speech at Yale Law School: "We cannot expect the public to have faith in our judicial system if, without clear explanation, we consistently green-light harmful acts that do real damage."

Justice Elena Kagan sounded the alarm earlier, in September 2021, when the court used its shadow docket to issue a one-paragraph unsigned opinion refusing to block the Texas Heartbeat Act. She accused the majority of green-lighting a "patently unconstitutional law" after a cursory review in less than 72 hours. "In all these ways, the majority's decision is emblematic of too much of this Court's shadow docket decisionmaking," she wrote, "which every day becomes more unreasoned, inconsistent, and impossible to defend."

Rep. Jamie Raskin has sponsored bicameral legislation to force transparency on shadow docket decisions. His argument is that the court's legitimacy has eroded with every significant ruling issued without real opinions or analysis. Lower federal courts, he pointed out, are deciding against the Trump administration in an overwhelming majority of cases, backing their rulings with weighty, well-reasoned opinions. The shadow docket lets the Supreme Court overturn those 100-page opinions with a flippant sentence or two.

Donald Ayer, a former deputy solicitor general who served under the Reagan and George H.W. Bush administrations, put it even more starkly. "On many subjects of real importance to our future, they've demolished what used to be the law," he said.

The White House pushed back in a statement, blaming liberal lower court judges for filing "a historically unprecedented number of injunctions" that the court is merely correcting. Justice Samuel Alito has made a similar argument, insisting the court is not to blame because "parties file" emergency applications, not the justices themselves. It is a deflection that mistakes process for justification. The fact that cases arrive on the docket does not explain why the court has chosen to decide more of them in secret, without explanation, in favor of the administration that brought them.

The Supreme Court was designed to be the most visible court in the country. Its arguments are public. Its opinions are published. Its reasoning is supposed to bind the nation through persuasion and precedent, not through anonymous votes issued behind closed doors. What happened last October was not a crisis, exactly. It was a slow erosion that finally reached a visible milestone, a number that told the whole story. The court had decided more cases in the shadows than in the light. The question now is whether the shadows are permanent.