The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Looking for Partisan Patterns in the Shadow Docket
The New York Times examines the "sharp partisan divides" on the Supreme Court's interim docket.
In today's New York Times, Adam Liptak takes a look at the "sharp partisan divides" on the Supreme Court's "emergency docket" (aka the "shadow docket" or "interim docket").
The story notes that the Trump Administration has sought emergency or interim relief more often than did the Biden Administration, and has had more success--prevailing in 84 percent of such cases compared to 53 percent during the Biden Administration. "That is perhaps unsurprising, given that the court is dominated by six Republican appointees," Liptak writes.
The story notes that there appears to be an ideological or partisan pattern in the justices votes on such orders.
The emergency docket presents a different portrait of the court, one in which partisan affiliations map onto voting patterns quite closely, reinforcing the declining public confidence in the court reflected in opinion polls.
On the far right side of the court, Justice Samuel A. Alito Jr. voted with the Trump administration 95 percent of the time and the Biden administration just 18, for a gap of 77 percentage points.
On the far left, the size of the gap was identical, but in the other direction. Justices Sonia Sotomayor and Justice Ketanji Brown Jackson favored the Biden administration by 77 percentage points.
These are striking numbers, but there are reasons for caution: "The cases the two administrations pursued were different, of course, making comparison inexact, and the concentrated volume and sheer ambition of President's Trump's applications dwarfed those of his predecessor."
The article has this to say about the Biden Administration's record seeking interim relief from the Court:
Despite the court's conservative supermajority, the Biden administration did obtain relief in a slight majority of its emergency applications, including ones involving a commonly used abortion pill and "ghost guns," which are kits that can be bought online and assembled into untraceable homemade firearms.
But victories like those were influenced by two factors.
Solicitor General Elizabeth B. Prelogar, like her predecessor in the first Trump administration and her successor in the current one, made strategic choices about which cases to bring to the court, generally choosing only ones with at least a fair prospect of success.
Second, more than two-thirds of the Biden administration's emergency applications took on rulings from the U.S. Court of Appeals from the Fifth Circuit. Opponents of the administration's policies and programs often filed challenges in that circuit, correctly anticipating that they would meet a favorable reception with its especially conservative judges. Still, those rulings often proved too conservative even for a generally conservative Supreme Court.
Moreover, in three cases in which the justices initially turned down the Biden administration's requests for emergency interim relief from Fifth Circuit rulings, the administration ultimately prevailed when the cases were set down on the merits docket for full briefing and argument.
For whatever reason, the article does not include a similar analysis of the second Trump Administration's record of success seeking interim relief.
It seems to me rather clear that the primary reason the Trump Administration has seen such success on the interim docket is because it has been very selective in deciding which cases to bring to the justices. The Trump Administration has aggressively pursued Supreme Court relief in cases where district courts lacked jurisdiction or provided overbroad or improper relief, but has acquiesced to the normal pace of litigation and appeals where the Administration's legal position is weak. It is no accident no case involving the Administration's attacks on law firms or universities has yet to reach the Court.
One can see how the Trump Administration has been selective and strategic just by looking at the numbers. According to Just Security there have been approximately 400 suits filed against he Trump Administration, over 125 of which have resulted in injunctions or other judicial orders blocking or staying the Administration action. So while the Trump Administration may have prevailed in 84 percent (16 of 19) applications, it remains the case that it has obtained Supreme Court relief in less than 15 percent of the cases in which its actions have been blocked or stalled by lower courts.
It is also fair to note that, as a general matter, the circuit courts of appeal were more likely to corral wayward district court orders during the Biden Administration than they have been in 2025. (See, for instance, how they handled suits against the "Social Cost of Carbon" EO.)
The story also notes that the Court refused to consider the propriety of universal injunctions when asked by the Biden Administration, but agreed to consider that question in Trump v. CASA. This is a fair point, but the story glosses over some important distinctions, such as that the brief at issue sought consideration of the scope of relief available under the APA, a more difficult question than that resolved in CASA that the Court has yet to address. More importantly, the Biden Administration combined its request for consideration of universal relief with review of the merits and, the latter of which was granted. As has been the Court's fairly consistent practice, a majority of justices saw no need to consider the scope of relief in that posture, perhaps because any judgment of the Court would, by its nature, apply nationwide.
My own view is that the Court's treatment of the second Trump Administration, to date, presents a very incomplete picture. More telling will be how the Court handles cases involving the Administration's more aggressive and more legally questionable actions, particularly those the Trump Administration has kept out of the shadows of the interim docket thus far.
