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Supreme Court

What Would It Take to Tame the "Shadow Docket"?

Those who don't like how the Supreme Court handles requests for interim relief might like solutions to the problem even less.

Jonathan H. Adler | 4.23.2026 10:28 AM

It is much easier to complain about how the Supreme Court handles interim orders on the "Shadow Docket" than to propose meaningful and acceptable reforms. That is, if one is concerned about the process and practice of the Court (and not just its jurisprudential tilt), one must confront the trade-offs inherent in any reform of how interim orders are sought, considered, and addressed.

This is one of the lessons of Garrett West's important new paper "Taming the Shadow Docket," just published in the Virginia Law Review.

Here is the abstract:

The Supreme Court's shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This Article identifies........

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