The Supreme Court’s Emergency Docket Turns Ten
In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione mark the ten-year anniversary of what’s often called the Supreme Court’s “emergency docket”—sometimes labeled the “shadow docket”—and examine how it has reshaped constitutional litigation.
Mark and John explain what the emergency docket is, how it differs from merits decisions, and why its modern form is often traced to the Supreme Court’s 2016 decision to stay the Obama Administration’s Clean Power Plan. They discuss why emergency relief can be critical to preventing irreversible “fait accompli” outcomes when executive action races ahead of judicial review.
The conversation also explores debates sparked by critics of the emergency docket, the confusion it can create for lower courts, and whether decisions issued without full opinions should bind judges below. Along the way, Mark and John reflect on the legacy of Justice Antonin Scalia—whose final vote played a key role in the Clean Power Plan stay—and how his jurisprudence continues to influence debates over judicial power, originalism, and the proper limits of the administrative state.
Transcript
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Unknown
If you think that unwritten law doesn't affect you, think again. Whether you're a business owner or a professional, just an average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they're really restricting your liberty without the consent of the governed.
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Mark
Welcome
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Mark
to Unwritten Law. Mark Chenowith with John Vecchione, as per usual. And John, we have a an anniversary to celebrate. Well, maybe celebrates not the right word, but an anniversary to Mark. Acknowledge. That's good. The emergency docket, turned ten years old.
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Mark
this month. It's not that it didn't exist before then. So, I mean, it's a little bit misleading, but it's really ten years since, the first major ruling that that sort of set the trajectory for what the emergency docket has become over the last decade.
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Mark
And let me just start, for those who don't know, by explaining what the emergency docket is and then, and then maybe talk about how this came about, but, the emergency docket is essentially when the Supreme Court is asked to rule on something, usually a stay or, a preliminary preliminary injunction, maybe, possibly a TRO. But it's asked to do that without full briefing on the merits and typically without oral argument.
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Mark
And you would see this.
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John
Most often on the merits below.
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Mark
he ten year mark, long before:00;01;44;27 - 00;01;46;10
Mark
And they would rule on those.
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John
And there's also a story is internet time
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John
finding the judges wherever they are on in summer vacation or something to stop the death penalty while so they can look at the, reasons for
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John
what's going on, but I will add one.
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John
maybe I'll bring it up. But don't forget, Douglass decided to stop the bombing of Cambodia on the
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John
emergency.
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Mark
Oh, I did not remember that.
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John
Yes. So that is the one where I was like, you know,
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John
it has had consequences. And then because they were all out and Douglass had done this in his dotage, they all had to reconvene to say no, the president gets to do what he wants. But, that was an emergency docket.
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Mark
Yeah. So so it's maybe not really accurate to say that it. But but the modern emergency docket turns ten is what, is what Steve Vladeck said in his, one first, piece this week. And, and, and I think, fair to say, he's not a fan of, of the, the emergency docket sometimes called the shadow docket.
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John
Well
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John
because he did he put he did he made that he put that term in a book and it took off like,
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John
like while.
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Mark
The shadow docket term.
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John
Yeah. In his, in his open, which is many years now young man. But they are going to say first line he wrote the book The Shadow
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John
Docket, and, even Supreme Court justices are fighting back against it.
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John
But it was a powerful
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John
concept. And yeah, you got to give him credit.
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Mark
Yeah. I think you said Justice Kavanaugh prefers interim docket or.
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John
Yeah, yeah.
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Mark
I know that sounds sounds anodyne, doesn't it? Yeah. Yeah. Well, and the reason that they call it the the interim docket is because they don't feel themselves bound by these decisions that are made. So if they make a decision here and then they set it for argument. For example, we had this in the Trump v cook case, right?
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Mark
Where they they made an interim decision not to allow the firing of cook to go forward. But they're not bound by that. They've they've now had full briefing. They've heard it on the merits. And they're going to issue a decision. And that that that decision didn't have precedential value. But interestingly, they have said that their interim docket decisions have precedential value for the lower courts.
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John
And they just did that this year, which is very
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John
th,:00;04;07;03 - 00;04;09;07
Mark
well it says it won first is his Substack.
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John
One first is something. Yeah. So but what does he and
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John
I think that, you know, because I'm going to say that, Amy Howe over at Scottish Blog agrees with him. I think it's, it's it's become kind of because of because of that Cambodian thing and certain. I'm not quite sure that I believe in all this 100% in the ten year, but it is widely discussed in our in our area and Supreme Court bar, that it is the ten year anniversary.
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John
And so I'm not going to fight back on that but I why what is what was the trigger.
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Mark
Right. So it was actually the last case in which, Justice Scalia issued, a vote. And this was, involved the Obama administration's Clean Power plan and what the the states who are suing the the Obama administration over that claimed. Look, if if you let this go into effect, we're going to have already had to change everything that that we're doing and managing, at the state level with regard to these, with regard to climate change, with regard to, to how these plants operate, shutting down plants, you can't just shut down a plant and reopen it at the, you know, at on the whim of a judge.
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Mark
s decision was in February of:00;05;44;15 - 00;06;04;13
Mark
opped the Clean Power Plan in:00;06;04;13 - 00;06;12;14
Mark
The horse would have been out of the barn however you want to look at it. But these coal fired plants would all have been shut down. There would have been probably a lot of nuclear plants shut down as well.
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John
Like Germany would be sitting around with the electric.
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Mark
hat important a decision from:00;06;40;15 - 00;06;48;22
John
And so, you know, bad thing. Good thing, I think for me, just right,
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John
that the district courts have shown some confusion over that. The Supreme Court doesn't feel bound, but district courts do. And if they don't say enough, it's kind of hard sometimes to know. Now, sometimes they're just being contemptuous, I think, but not always, because, you know, you don't want to have the Supreme Court looking over your shoulder because then if you are going to go to the merits, you got to go to the merits and you got to, this is the Humphrey executor cases.
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John
I'm thinking of where they haven't overruled Humphrey's executor. And Humphrey executor is coming up all the time. So what is the district court and
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John
and even the appellate court supposed to do now, obviously, the Supreme Court is going to move to get rid of Humphrey's executor.
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Mark
But but they haven't done anything.
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John
Haven't done it. So what are you supposed to do? And so I think that what it seems like strikes me. And you brought up so we covered in court. They said, no, you can't fire. That's Federal Reserve, right, right.
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Mark
But but in Slaughter and Wilcox. Yeah. And FTC Wilcox. National Labor relations Board.
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John
They can go.
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Mark
They can go. They allowed those.
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John
They're they're, you know, they're they're, giving you a are the only said no previews, no hints. I think they're giving previews for breadcrumbs. Yeah, exactly. So, I think they are, but but previews and hence on, you know, it's something that lower court.
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Mark
Well and they're not reasons. Right. And that's right. The so what a decision gives you when we talk about decisions and opinions we use those terms interchangeably sometimes. But really they're not the same thing because the decision is just what the justices have decided is going to happen. But the opinion gives the reasons behind the decision. And essentially the interim docket gives you decisions without opinions, without reasons.
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Mark
Sometimes you have opinions written, particularly by the people disagreeing with the decision that's been made. And you've even had on a couple of occasions, on the interim docket, folks who agree with the decision being made, right. Little opinions to say, well, just to clarify, we're not reaching this or we're not doing this or or maybe the dissent is wrong in this way, but it's still these are very short pieces compared to the lengthy dissent opinions we get with merits decisions.
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John
And they're very hard. And particularly,
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John
as it body has come out with kind of better explanations in prior cases. It's very hard. What what do I do with this? And I think it was Gorsuch who wrote the opinion saying The Shadow or was it or was it Roberts who said, these are precedential? I'm trying to think what it was in right
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John
justices.
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Mark
Right, right. It was last summer. Well, and and then I think it was Justice Gorsuch who, who had some, sharp words for the district judge in Massachusetts, who was a Reagan appointee and said, look, I wasn't trying. I didn't know these things.
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John
Were were.
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Mark
Binding, precedential. So, but now now they know, I suppose. But but then the question remains, John, should they be should district judges be bound by the decisions of the Supreme Court that don't come with opinions? And and the first thing I would say about this is go read some decisions from the 19th century, go read some opinions.
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Mark
I mean, from the 19th century. If I'm going to try to distinguish between those two terms, a lot of times they weren't very long. They didn't give a lot of reasons. So it's not necessarily a new thing that lower courts are bound by, relatively sparse, Delphic, if you will, decisions from the higher court.
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John
Yeah. I think but I think the other thing is, obviously I'm
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John
th,:00;11;02;09 - 00;11;11;22
John
I think the race by both sides to create a fait accompli is changing the speed and rhythm of of all of these
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John
cases.
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Mark
No question.
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John
And so the EPA
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John
said, with power, what they want it to do and what they always want to do with these high, capital
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John
intensive industries.
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Mark
Or with student loans. We were just talking.
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John
About it, but yes, exactly. They wanted
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John
to get the money out the door so it could not even if it could be, we couldn't politically ever be taken back.
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John
Right. So fait accompli is what everyone's trying to do. The executive's trying to do it. The, the litigators are trying to do it. They're trying to create a fait accompli so that the energy goes out of whatever political side's trying to do. X or Y, they go, oh, now I have to move this rock up the hill.
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John
I'm not going to do it anymore. That's part of what's happening. And I think that, Professor Vladeck is angry that progressive things are being stopped. But I will tell you anyhow, brings up a very important, she brings up two cases where the Trump administration won, and I want to I want to mention them. One is that they, the, temporary protected status of the Venezuelans.
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John
The on the emergency docket, they allowed it had been stayed by a lower court. The Supreme Court said no. Well, all those Venezuelans are going to be out of the country if this is an interim decision. But if they later decide that some of those people had a right, they're not coming back. Right? They're out of country.
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John
They're not coming back. So that's the fait accompli on that side. Then it was the the end of transgender,
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John
people in the military. Those people are out very, you know, once they're out, they're not coming back in. Maybe some 1 or 2 will the on.
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Mark
Or others will in the future under a Democrat administration, possibly.
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John
Life moves on. But then the Supreme Court law, I mean, the administration lost on the National Guard in Chicago that also pulled the National Guard. They
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John
did it by themselves out of Los Angeles and other cities. Right. So whatever the legality of that is, and if it was an emergency and there was a real need for it, apparently, all those cities are now without the National Guard.
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John
So it had big consequences sometimes for the administration, sometimes against the administration. But but as you just said, with the with the Clean Power Act, six years, there could be
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John
six years now. Right? And so it is.
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Mark
And there were some reasons why that one took as long as it did, including a change of administration. And then, you know, up and back and down circuit.
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John
Right. And, and the West Virginia, I mean, it was it was a saga, but.
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Mark
years to get from, filing in:00;13;59;26 - 00;14;28;05
Mark
And in June of:00;14;28;05 - 00;14;29;16
Mark
They're going to say that it's moot.
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John
Right?
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Mark
In many cases. And I don't think you want that. I don't think you want the and this is not a Partizan point. This isn't an anti-Trump point or an anti Biden point. But I don't think in a democracy you want the the executive branch to be able to move so fast that it's outpacing the courts. And we never get the decision on whether or not the administration was acting within its statutory authorization, whether it was exceeding its constitutional bounds.
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Mark
I think we want the courts to be able to weigh in on those things.
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John
I, I and that is why, you know, it's one thing when they keep the status quo, I am much less for this because I do think the executive committee, considering cases, try to get something started. I want sure, I want to get some outcome quickly, before bad things happen.
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Mark
But what's the status quo? Is the status quo.
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John
Status quo is whatever happened before this, that was okay.
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Mark
Okay.
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John
So for instance, include power. Their people going about their business like dirty power okay.
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Mark
Or in student loans. You were you were paying the interest on the loans or.
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John
Whatever that was. And if they changed it retroactively, that
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John
is what should be, should be preserved.
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John
So I and and I do think in a lot of these cases, I can't think of one where
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John
thing for stocks, some big thing came out the other day, you.
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Mark
Right. Oh, not not not on the spur of the moment. I bet there are examples. I mean, the not necessarily in the same case. I mean, the biggest example would be that, during the that I can think of immediately is during the pandemic, they allowed the churches to be closed, and then they flipped and said, well, never mind, the churches can be open.
00;16;18;08 - 00;16;28;03
Mark
Now. I think the biggest reason for that was that Amy Coney Barrett replaced Justice Ginsburg, and that was your vote. So, you know, I don't necessarily know that that was an emergency docket issue.
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John
I, I think I believe it's because the
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John
the, injunctions came in the first three months and I think in the first, in the first three months, they were going to let anybody do anything. That's what I really think happened. And then after three months, they they were like,
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John
was that bad.
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Mark
Well, I wish they had done it a lot sooner.
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John
But,
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Mark
But that does raise a question. I mean, was the emergency docket helpful or harmful in that situation?
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John
It was harmful. It certainly was harmful in that because, my God, if the government decided that it. Yeah. What happened in the emergency docket. And that was before it was presidential. And
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John
we'd say, well, come on, that was a preliminary injunction or, you know, whatever it was. And, and, and that's a higher standard. And it
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John
in matters, but yeah.
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Mark
Tried it. Go and try. I hope this never happens again. We don't have another pandemic, but go and try to get a district judge to intervene against an executive action when the Supreme Court in its interim docket has said, no, no, no, that's okay. They can do that. Right. Good luck. Good luck. You're not going to get it exactly right.
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John
So I do think, I think the idea of
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John
modern, interim or shadow docket is a big deal. I do think I do like reading Amy and Stephen and all these people talking about it. I would like to see some talk about the big cases that happened on the interim docket. In the old days, they just didn't come so fast and furiously.
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John
I do believe it's the case.
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Mark
It's, It's the pace. It's the, it's the what's at stake, or these are bigger cases than than we've seen before. Not that. Not that. The death penalty cases didn't have huge ramifications for the individual, who was executed, but, but these are society wide effects on many times on these, on these emergency docket cases.
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Mark
I'm glad. And I gave the Supreme Court credit for this when we talked about the Trump v cook case, but I'm glad that they set that for oral argument. He sort of did what you suggested there. They kept the status quo ante. They said it for argument. It had argument. We'll get a decision. We'll see what happens there.
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Mark
And I guess we'll learn whether that was a breadcrumb for how they're going to come out or not. But but I would be, I'd be more concerned in a world in which the modern emergency docket didn't exist, because I do think that the Biden administration and the Trump administration have both behaved in ways suggesting that they're trying to outpace the courts.
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Mark
And I think without this tool, they would have much more success in outpacing the courts. And I think that that, liberty would suffer. So, the one thing we haven't said is that, the ten year anniversary of the modern emergency docket is also the ten year anniversary of Justice Scalia's passing. And so, wanted to to comment on that, briefly.
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Mark
And, I don't know that there was any doubt that this would be the case. John. He was such a jurisprudential giant, both with textualism and originalism.
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Mark
As the person who, who perhaps more than any other, is responsible for overturning Chevron deference, which was near and dear to Justice Scalia's heart. What do you make of his legacy here ten years later? I mean, we're all textualist now. Justice Kagan said.
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John
But it was, and I will say that you.
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John
Justice Thomas over what originalism his I think are have become more important now because you're starting to see that quite a bit. And I you know, I didn't know him, but I met him a number of times. And, I think that, its power was not just in the writing, but by personality.
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John
His personality was very strong
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John
wherever he was even just.
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John
Yeah.
00;20;18;29 - 00;20;19;27
Mark
He's a raconteur.
00;20;19;27 - 00;20;25;26
John
In law school, we were taught.
00;20;25;29 - 00;20;33;04
John
When you report on it and, any event with.
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John
That.
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Mark
Right.
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John
But the fact is that his personality was very strong, very engaging and, and comes up
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John
in his writing. But I also think that his wide speaking engagements were very important to this. And I will say that, although some people claim that because he would sting a little bit in these, he drove votes away.
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John
I don't see that he drove votes away because they always talk about Brennan. He was another one with big personality. They said, you know, draw people in. I, I think that Scalia drew people in and I don't I can't imagine except maybe for O'Connor, you know, that he
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John
drove anyone off. But obviously he's a influence on so many people.
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Mark
Not as much as John Riggins did, though.
00;21;20;22 - 00;21;49;13
John
Sandy, baby. So I do I do think that the fact and his quirks are obviously a legacy, because now they're all on the margins. Yeah, and they all I don't I don't see too many even even the antagonistic class that he goes hired. They're not really off the reservation still doing those things to make dominated throughout the legal, you know, the legal environment.
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John
So it keeps going on and you but I do want to ask you at the AEI event.
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Mark
No.
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John
I wasn't able to go either. Now I understand that. And so I think we'll continue to have this. But I think the conversation and, I think is what originalism is and its nuances, how far you go and what are you and really the question of what do you do with all cases? Right. I always say.
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Mark
Older people.
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John
All right. I hate that case.
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Mark
I think so does Thomas.
00;22;24;24 - 00;22;44;20
John
And but it's over 200 years old. It's by the first the first Supreme Court. But if you're it, do you really think. Well, no, I really think that. So that. Oh you applied the civil case. Well they're closer. They knew more. So we're going to allow it. Well that's still gotta eat at the Thomas. Right. And so but other justices will be like oh come on.
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John
It's from the 18th century. Good. So. Right, right.
00;22;48;24 - 00;23;05;12
Mark
Well I'll, I'll point to a different, a different relationship. I think you're absolutely right about Scalia and Thomas and the importance of that dialog for the health of originalism. I would point to the Scalia Ginsburg relationship. And of course, we you know, we have our Ginsburg, Scalia scholars or fellows rather, here at, at in Clay.
00;23;05;15 - 00;23;30;13
Mark
And I think that the, the civility that they demonstrated, was super important. And I saw just this week, Justice Jackson came out and said that the justices get along very well. Well, I'd like to see a little more of that in public. Maybe they could go around, do some speaking engagements as pairs instead of single solos or something like that, because I think that there's a lot of fractious ness in, in, in the legal world right now, certainly, in DC.
00;23;30;13 - 00;23;48;13
Mark
And I think that the, the ability that Scalia and Ginsburg showed to disagree fundamentally on points of law, but still get along right, famously went to the opera together and so forth. And we do that with our Ginsburg. Scalia, fellows said, set an important example for the bar, and I don't who's setting that example today?
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John
This Breyer came to the federal side, and he had a discussion Gorsuch and I thought was excellent. Yes, excellent.
00;23;55;23 - 00;23;58;03
Mark
So one of the best ones I've had at that event.
00;23;58;10 - 00;24;18;02
John
Breyer stays active is he's very, avuncular and but also excitable about certain things. And so, you know, if he stays in right now and, the other thing Jackson said was, hey, tariffs take a long time. There's a lot of issues. You know, we have legal decisions to make and all that. And I was I was heartened by that.
00;24;18;02 - 00;24;21;08
Mark
Where are you I was worried a little bit by that. So I, I think.
00;24;21;08 - 00;24;30;00
John
It's pretty simple. Yeah. Exactly. So do I, but the fact that it seems like it seemed to me like a don't worry statement and I like the. Don't worry.
00;24;30;05 - 00;24;31;18
Mark
Okay. Fair enough.
00;24;31;21 - 00;24;41;16
John
But but yes, I the one thing Michael Steele and you're in le studio something that I didn't know and we was going to be elevated
00;24;41;18 - 00;24;50;23
John
to the Supreme Court. He was complaining maybe to Silberman about how, they're all 80 years old and they just send notes back to each other.
00;24;50;23 - 00;25;11;02
John
And it's not like being on the DC circuit with Ginsburg and and, Bork and all these guys, you know, we're all back and forth, and he he wanted that, that interplay and that, that sort of, intellectual engagement that they had on the DC circuit in those days. But he did bring it to the Supreme Court. It's it's a different place now.
00;25;11;02 - 00;25;12;29
John
It's more active than it was. It's
00;25;13;03 - 00;25;20;02
John
not, you know, since some of those old it's not not the Burger Court. Even if you listen to practitioners, some of the old
00;25;20;07 - 00;25;31;21
John
arguments I have, may it please the court. It's on. It's, it's it's on, tape to give you some idea of how old it is, but, it's not always as quick and engaging as now.
00;25;31;21 - 00;25;33;26
John
And I think you also brought
00;25;33;29 - 00;25;46;26
Mark
Well, Justice Scalia, you are missed. And, emergency docket. You're not missed. You're glad you got glad you have that, and we will keep you apprized. What happens with tariffs, I guess? John,
00;25;46;29 - 00;25;49;08
Mark
you've been listening to Unwritten Law.
00;25;49;11 - 00;25;57;01
Unknown
As we like to say here at Nclat, let judges judge, let legislators legislate and stop bureaucrats from doing either.
