The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Supreme Court

Stephanie Barclay on "The Emergency Docket's Mistaken Birthday"

Contrary to what some believe, the Clean Power Plan was not the first executive branch action stopped on the "Shadow Docket."

Jonathan H. Adler | 4.22.2026 1:30 PM

Was the Clean Power Plan the first executive branch action halted by Supreme Court order on the "shadow docket"? Was it even the first Obama Administration action stopped in this way? Over at SCOTUSBlog, Stephanie Barclay explains why the answer is "no."

Her piece begins:

Last Saturday, the New York Times published a trove of internal Supreme Court memoranda from February 2016 and declared that the five-day deliberation over President Barack Obama's Clean Power Plan marked the birth of the court's modern "shadow docket." Stephen Vladeck, writing before the leak and again after it, made the same claim: the Feb. 9, 2016 rulings were, he wrote, "the birth of what we might call the modern emergency docket." Jack Goldsmith, pushing back against the broader Times framing, narrowed the point but did not abandon it – the 2016 order, on his account, "fairly marks the beginning of the Court's modern active engagement with presidential initiatives via interim orders."

Each of these accounts locates the emergency docket's initial engagement with presidential initiatives on a single winter evening in 2016. Each is wrong. An earlier interim order blocking an executive branch regulatory program as applied to a large group of challengers was not entered by Chief Justice John Roberts. It was entered by Justice Sonia Sotomayor, acting alone, more than two years before the Clean Power Plan application landed at the........

© Reason.com