Is the US Supreme Court a real-time control room?

I

Another growing concern about the US Supreme Court is its expanding “shadow docket.” “Emergency applications,” writes the New York Times‘s Adam Kushner,

require a snap decision about whether a policy can go ahead or must wait while lower judges argue over its legality. Critics call this the “shadow docket,” and the court usually rules on the urgent cases within weeks. Trump has won almost all 18 of these petitions. And unlike normal rulings, justices often don’t explain their rationale.

What is of interest here isn’t so much the shadow docket itself as it is how some Justices see what they are doing in deciding this way. Kushner elaborates:

None of these emergency decisions are final. In each, lawyers can fight the policy in lower courts. Perhaps the Supreme Court will eventually decide that the government can’t deport migrants from around the world to Sudan or unmake a federal agency without the say-so of Congress. But by then, critics of the shadow docket say, the work will already be done.

The justices themselves have battled over the propriety of emergency rulings. In a 2021 dissent, Elana Kagan rued a midnight ruling that effectively overturned Roe v. Wade in Texas. A month later, Samuel Alito returned fire in a speech:

The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. … You can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way.

Some law professors have built a new database tracking the rise of the emergency docket. The first half of 2025 represented a record high, with 15 emergency applications accepted as of June 18. The next highest peak was 11, from the final year of the previous Trump administration.

(accessed online at https://www.nytimes.com/2025/07/17/briefing/a-supreme-court-mystery.html

Let’s extend that analogy, “You can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way”.

II

Imagine if you will the shadow docket consists of the real-time decisions of the justices (if only aspirationally) as reliability professionals. They see themselves managing the federal justice infrastructure not only during its routine operations but also during turbulent periods of just-in-time or just-for-now.

One research finding takes on considerable prominence in this thought experiment, namely: Control rooms managing just-for-now–“just keep that generator on line for now!”–do so outside standard operating procedures and routines.

Here, the emergency is such that real-time reliability of the electric grid requires keeping that generator on line, even though it was scheduled for mandatory maintenance and repair at that time. Duch exceptions, while allowed, in no way are meant to undermine the official practice and procedure of routine repair and maintenance.

So too for an aspirational Supreme Court-as-control room. Our early Federalists also worried about systemwide emergencies, and the accommodation they made was that, yes, presidential emergency powers may be needed in extraordinary times (think of Lincoln during the Civil War). But these would not serve as precedent for governance thereafter (Fatovic 2009). Or in the case of the quoted shadow docket, the legal determination comes later after lower court deliberations.

III

The real problem, of course, lies in Alito’s analogy. Yes, there are doctors in the emergency room, but there’s little else that is empirical. The justices are not emergency management teams in emergencies, and thereafter a team of physicians the rest of the time. By and large, career physicians and career emergency staff are different professions requiring different skills and orientations, at least if you take the management literatures seriously. To think the longer-care physician translates easily into the emergency ward is like thinking you can make fish from fish soup.

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Source: C. Fatovic, (2009). Outside the Law: Emergency and Executive Power. Baltimore:
Johns Hopkins University Press.