In April, the U.S. Supreme Court voted 5–4 to reinstate an Environmental Protection Agency rule promulgated during the Trump administration. Why? The majority did not explain, and it did not have to, because the case, Louisiana v. American Rivers, was decided on an emergency basis. Without receiving briefs on the merits from the parties or hearing oral arguments, the majority simply granted a motion to stay a lower court's decision.
Critics call emergency actions like this the "shadow docket." It is, as University of Chicago law professor William Baude describes it, "a range of orders and summary decisions that defy [the Court's] normal procedural regularity." The shadow docket's foremost foe is Justice Elena Kagan, who dissented in American Rivers, joined by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. "The Court goes astray," Kagan declared, by turning the emergency docket into "another place for merits designations—except made without full briefing and argument."
