Justice Breyer Defends Supreme Court's Shadow Docket Amid Growing Concerns

Retired Supreme Court Justice Stephen Breyer has weighed in on the growing debate surrounding the Supreme Court’s use of the so-called “shadow docket.”

In recent remarks, Breyer addressed concerns about the Court’s reliance on emergency orders, which bypass the traditional review process. His comments come as legal scholars and commentators increasingly scrutinize the shadow docket’s expanding role in deciding major cases without full briefing or oral arguments.

During a discussion at Harvard Law School, Breyer was asked whether the public should be concerned about the Court’s use of the shadow docket. His response was unequivocal: “No.”

"Every court has what you're saying is a shadow docket, which we call an emergency docket," Breyer explained. "Throughout most of the Supreme Court's history, the docket had been used primarily to issue stays of execution in death penalty cases. Or sometimes, there would be a very important case about an election or an election rule, and we might issue the stay."

Breyer, who now serves as the Byrne Professor of Administrative Law at Harvard Law School and as a visiting judge for the First Circuit Court of Appeals, traced the shadow docket’s expanded use in part to the surge of legal challenges that emerged during the COVID-19 pandemic. These challenges included disputes over vaccine mandates and other pandemic-related restrictions.

He rejected the idea that the Court’s increased reliance on the shadow docket reflects any hidden agenda or partisan plot. Instead, Breyer argued that the nature of cases reaching the Court on an emergency basis has shifted. While death penalty and election matters were once the primary focus, many modern shadow docket cases now involve constitutional disputes about the balance of power between Congress and the president and the separation of powers.

"So it's hardly surprising to me, where you have a government that wants to bring those [issues] up, that you have more cases on the emergency docket," Breyer said.

Former Judge Michael McConnell, though differing in judicial philosophy from Breyer, shares a similar perspective on the shadow docket’s growing use. In an op-ed for the Washington Post, McConnell argued that the criticism of the shadow docket is largely misplaced.

McConnell acknowledged that many shadow docket decisions are subject to legitimate criticism, but he cautioned against wholesale condemnation of the practice. He pointed out that the judiciary’s traditional process—months or even years of litigation—often fails to address urgent policy disputes in time to prevent irreparable harm.

"Many shadow docket decisions are subject to legitimate criticism, but the wholesale condemnation of the practice is misguided. Such cases are driven by the practical reality that it takes months if not years for a case to wend its way through the judiciary. Whether a policy is implemented while the case is litigated is often the whole ballgame."

McConnell further emphasized the difficulty of these cases, noting that harm is often irreparable on both sides. He highlighted the challenge of undoing executive actions once implemented, such as tariffs or vaccine mandates, while also preventing executive overreach when authority is genuinely in question.