Don’t Blame John Roberts for the Shadow Docket

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Guest Essay

Don’t Blame John Roberts for the Shadow Docket

April 24, 2026,

5:02 a.m. ET

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Damon Winter/The New York Times

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By

William Baude

and

John Guida

Mr. Baude is a professor at the University of Chicago Law School. Mr. Guida is an editor in Opinion.

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It is

referred to as

the shadow docket, the emergency docket, the interim-orders docket. Whatever you call it, this fast track now accounts for a substantial part of the Supreme Court’s workload.

“

The Shadow Papers

,” a New York Times report by Jodi Kantor and Adam Liptak, digs into a turning point in the Supreme Court’s use of the shadow docket — the practice of issuing orders and summary decisions typically without full briefing, oral arguments or explanations. For many legal scholars, the revelations in the report, which included leaked documents from the justices, offer further proof that the court is too partisan and outcome-oriented.

William Baude, a law professor at the University of Chicago — who

coined

the term “shadow docket” — has a

different assessment

. He shared his thoughts in a written conversation with John Guida, an editor in Times Opinion. It has been edited for length and clarity.

John Guida:

In 2016, the Supreme Court blocked in a shadow docket ruling an ambitious new environmental policy from the administration of President Barack Obama, the

Clean Power Plan

. That judicial stay is now identified as a turning point for the court. Legal scholars noted that it was highly unusual or even unprecedented for the court to block an executive branch regulation before any lower courts had ruled on it. You said the Times report was “non-scandalous.” Why?

William Baude:

It’s important to separate two things. One is the fact of the stay, which was widely reported and discussed in 2016. The stay was a big deal, and it was rightly controversial. It can be seen as an important landmark in the growth of the shadow docket and in the growth of the

major questions doctrine

. But we have known all of that for 10 years.

The other thing is what we learn from the memos, which provide a glimpse into the justices’ reasoning and deliberation. And what the memos tell us, frankly, is that the justices applied the expected legal standards, which they argued about in a somewhat predictable fashion. If anything, I think that reasoning

makes the court look pretty good

.

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