Earlier Than Thought: Supreme Court’s Shadow Docket Began with Little Sisters Case

The widely held belief that the Supreme Court's "shadow docket" — emergency orders blocking presidential actions without full briefing or oral argument — began with the Clean Power Plan in 2016 is challenged by legal scholar Stephanie Barclay. She argues that its origins lie earlier, in a pivotal case involving religious organizations and contraceptive mandates.

Barclay disputes claims from The New York Times and others that the February 2016 rulings on the Clean Power Plan marked the inception of the modern shadow docket. Instead, she points to an earlier instance: Justice Sonia Sotomayor's actions in December 2014. Acting alone as circuit justice for the 10th Circuit, Sotomayor granted a preliminary injunction to the Little Sisters of the Poor, halting enforcement of the contraception mandate despite lower courts denying similar requests. Her unsigned order, issued without merits briefing or oral argument, set a precedent that mirrored the characteristics of later shadow docket decisions.

This 2014 case demonstrated key features of the shadow docket: an unsigned order, no formal arguments, and swift action to block significant executive actions. Three weeks after Sotomayor's decision, the Court unanimously expanded the injunction to protect hundreds of other religious organizations. This marked a turning point in how the Court engaged with emergency applications, signaling a shift toward more frequent use of such orders.

Barclay also highlights other cases, including Wheaton College's 2014 request for an injunction and the Zubik v. Burwell case in 2015, where the Court further demonstrated its willingness to intervene swiftly on religious freedom issues. These instances collectively show that the shadow docket's roots extend beyond the Clean Power Plan, revealing a pattern of judicial response to executive actions that bypass traditional review processes.

The significance of this historical reevaluation lies in understanding the evolution of the shadow docket as a tool to address perceived overreach by the executive branch. It underscores how the Court has adapted its practices in response to regulatory strategies designed to avoid judicial scrutiny, raising questions about the balance between judicial oversight and administrative authority.