'The Supreme Court Is Unhealthy'

The New York Times’ recent release of sixteen pages of internal Supreme Court memos has pulled back the curtain on a process long shrouded in secrecy. The documents detail the Court’s February 2016 emergency intervention that blocked the Obama administration’s Clean Power Plan—a move that, until then, had never been taken before a lower court had even ruled on the policy. Chief Justice John Roberts, acting as the circuit justice for the D.C. Circuit, spearheaded the decision, overriding a more modest proposal from Justice Stephen Breyer. By exposing how the justices communicated and coordinated, the memos illuminate the mechanics of the so‑called “shadow docket,” where the Court issues swift, often undocumented rulings on nationwide issues.

Historically, emergency relief was a rare, one‑justice exercise dating back to the early twentieth century and confined mainly to death‑penalty cases in the 1980s. The 2016 Clean Power Plan case marked an inflection point, expanding the shadow docket from isolated, narrow orders to full‑court, nationwide interventions. Since then the frequency has exploded: the Trump administration recorded thirty‑four emergency rulings in its first fifteen months, compared with only eight such actions across the Obama and Bush years combined. The Biden era continues this trend, with monthly orders that can halt or reshape major regulatory programs, underscoring a structural shift in judicial behavior.

For businesses, the burgeoning shadow docket creates heightened regulatory uncertainty and limits the time available to mount traditional litigation defenses. The lack of oral arguments, brief filings, and public explanations means policy changes can be implemented—or blocked—overnight, affecting sectors from energy to education and immigration. Scholars like Steve Vladek argue that this stealthy exercise of power undermines the Republic’s checks and balances, calling for greater transparency and procedural reforms. Understanding the Court’s evolving emergency‑relief tactics is now essential for corporate counsel and policymakers aiming to anticipate and respond to sudden judicial actions.