The Supreme Court is Moving More Cases into the Shadows - Brennan Center

The Supreme Court is Moving More Cases into the Shadows

Source: Brennan Center for Justice

Date of Publication: July 13, 2026

Author: Ashleigh Maciolek. Maciolek is an advocacy campaign coordinator in the Democracy Program at the Brennan Center where she focuses on judiciary issues and Supreme Court reform. Before joining the Brennan Center, Maciolek was a research associate at the Center for American Progress, focusing on democracy and technology policy. Previously, she worked at Harvard University’s Weatherhead Center for International Affairs and interned at the Brookings Institution.

Maciolek graduated from Providence College with a bachelor’s degree in economics and a minor in philosophy and received her master’s degree from the London School of Economics focusing on public policy and philosophy. She is currently a part-time evening student at the George Washington University Law School, where she serves as a Senior Editor to the Civil Rights and Civil Liberties brief.

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Why We Are Recommending This Article

This Brennan Center analysis examines a significant institutional development in the U.S. Supreme Court: for the first time, the Court resolved more substantive matters through its emergency, or "shadow," docket than through its traditional merits docket. Originally intended to address genuinely urgent matters requiring immediate intervention, the shadow docket has increasingly become a vehicle for resolving questions of substantial constitutional and public significance through expedited procedures that often lack full briefing, oral argument, or detailed judicial opinions.

For ISSE, the article highlights an important dimension of exceptionality that extends beyond executive power. Emergency procedures exist because exceptional circumstances sometimes require extraordinary institutional responses. When those procedures become a routine mechanism for deciding major constitutional questions, however, the distinction between exceptional and ordinary governance begins to blur. Whether viewed as a necessary adaptation to contemporary litigation or a significant institutional transformation, the growing reliance on the shadow docket raises broader questions about transparency, democratic accountability, judicial legitimacy, and the long-term normalization of exceptional procedures within constitutional government.