Throughline: What the Supreme Court Does in the Shadows
Hosted by Rund Abdelfatah and Ramtin Arablouei | Released June 26, 2025

Introduction

In the episode titled "What the Supreme Court Does in the Shadows," NPR’s Throughline delves deep into the often overlooked and rapidly evolving realm of the Supreme Court’s shadow docket. Hosted by Rund Abdelfatah and Ramtin Arablouei, the episode explores how the Court's expedited decisions are shaping American policy and the broader implications for the nation's legal landscape.

Understanding the Shadow Docket

The shadow docket refers to the Supreme Court’s ability to make swift decisions without full briefing or oral arguments, typically in response to emergency applications. Unlike the Court’s merit docket, which involves comprehensive deliberations on significant cases, the shadow docket handles urgent matters that require immediate attention.

Key Insights:

• Definition and Contrast: The shadow docket consists of quick rulings, often unsigned and brief, lacking the detailed explanations found in merit docket decisions.
• Increased Usage: Recent years have seen a substantial rise in shadow docket cases, moving from a handful annually to nearly weekly decisions.

Notable Quote:
Legal Expert Steve Vladek explains, “It’s really hard to fully understand the Supreme Court without understanding the shadow docket where the court is doing controversial stuff and is not explaining itself” (03:04).

Historical Context and Evolution

The shadow docket's prominence is not a recent phenomenon. Its roots can be traced back to significant shifts in the Supreme Court’s operations over the past century.

Early 20th Century Reforms:

• William Howard Taft’s Influence: As Chief Justice from 1921, Taft spearheaded reforms to transform the Court into a more autonomous and powerful institution. This included the adoption of certiorari, allowing the Court to select which cases to hear, thereby controlling its docket more effectively.

Notable Quote:
Steve Vladek recounts, “The first real shift comes in the early 20th century with the rise of certiorari, with the rise of Congress giving the Court more control over its docket” (13:07).

Post-Civil War Federalization:

• Expansion of Federal Law: The Civil War catalyzed a massive expansion in federal power and legislation, leading to an increased caseload for federal courts. Congress responded by creating more lower court positions while maintaining the Supreme Court’s size, further centralizing its authority.

Notable Quote:
Vladek notes, “The modern court's power comes from the discretion that Congress gave and that the Court took to basically set its agenda” (16:05).

Case Studies Highlighting the Shadow Docket

The episode examines several pivotal cases to illustrate the shadow docket's impact.

Alien Enemies Act of 1798 and the Trump Administration

In March 2025, President Trump invoked the Alien Enemies Act of 1798 to deport Venezuelan migrants without due process, characterizing them as Venezuelan gang members. This move triggered a series of shadow docket decisions:

• Initial Ruling: A federal judge blocked the use of the Act, prompting the Supreme Court to grant emergency relief, allowing deportations to proceed (02:43).
• Subsequent Orders: Less than two weeks later, the Court reversed its stance with an unsigned order requiring the administration to halt deportations, citing insufficient time for detainees to challenge their removal (02:59).

Notable Quote:
Vladek emphasizes, “At our peril... we're right there with you” (03:22), reflecting the episode's exploration of the Court's swift, opaque decisions.

Mifepristone Case

A critical example of the shadow docket's reach is the 2025 case concerning mifepristone, an abortion pill:

• Emergency Relief Application: The Biden administration sought to keep mifepristone on the market amid legal challenges.
• Supreme Court Ruling: The Court issued a stay without an opinion, leaving the decision process and rationale unclear (34:00).

Notable Quote:
Vladek articulates the issue: “If all you have to do is give a thumbs up or a thumbs down, there's no requirement that you sit back and think about the consequences” (35:39).

Impacts and Implications

The surge in shadow docket usage has profound implications for American governance and the balance of power among the branches of government.

Erosion of Due Process and Transparency:

• Lack of Explanations: Shadow docket decisions are typically unsigned and unexplained, undermining transparency and accountability.
• Speed vs. Deliberation: The need for swift rulings often sacrifices thorough legal analysis and consideration of broader consequences.

Expansion of Executive Power:

• Unitary Executive Theory: The Court’s shadow docket has increasingly favored executive actions, as seen in cases like the Alien Enemies Act and federal employee dismissals. This trend supports the concentration of power in the presidency, potentially sidelining legislative and judicial checks.

Notable Quote:
Vladek warns, “We have a court that is at once very into its own power, but also very into executive power” (47:43).

Impact on Lower Courts and Public Trust:

• Override of Lower Courts: The Supreme Court’s ability to swiftly overturn lower court decisions via the shadow docket diminishes the authority and function of lower judiciary levels.
• Public Perception: The opacity and frequency of shadow docket decisions contribute to declining public trust in the Court’s impartiality and legitimacy.

Future Concerns and Conclusions

As the shadow docket continues to expand, its long-term effects on American democracy and the legal system become increasingly concerning.

Sustainability of the Current Model:

• Court Overload: The Court is struggling to manage the high volume of emergency applications, potentially delaying significant cases and overextending its capacity (38:53).
• Balance of Powers: The reliance on the shadow docket exacerbates tensions between the executive and legislative branches, weakening Congress’s role as a check on presidential power.

Call to Action:

• Public Awareness: The hosts emphasize the need for greater public awareness and scrutiny of the Supreme Court’s shadow docket to ensure accountability and uphold constitutional principles.

Notable Quote:
Vladek states, “We ignore what the court is doing and we ignore what the Trump administration is asking the court to do at our peril” (50:00).

Conclusion

""What the Supreme Court Does in the Shadows" provides a comprehensive examination of the Supreme Court’s shadow docket, highlighting its historical evolution, current usage, and significant implications for American law and governance. Through expert insights and illustrative case studies, Throughline underscores the urgent need for transparency and accountability in the Court’s expedited decision-making processes.*

Notable Quotes:

• “It’s really hard to fully understand the Supreme Court without understanding the shadow docket where the court is doing controversial stuff and is not explaining itself.” – Steve Vladek (03:04)

• “The modern court's power comes from the discretion that Congress gave and that the Court took to basically set its agenda.” – Steve Vladek (16:05)

• “If all you have to do is give a thumbs up or a thumbs down, there's no requirement that you sit back and think about the consequences.” – Steve Vladek (35:39)

• “We have a court that is at once very into its own power, but also very into executive power.” – Steve Vladek (47:43)

• “We ignore what the court is doing and we ignore what the Trump administration is asking the court to do at our peril.” – Steve Vladek (50:00)

This summary captures the essence of the episode, providing a clear and detailed overview for those who haven't listened while highlighting key discussions and insights shared by the hosts and guest experts.