Justice Sotomayor’s 2013 Order: The True Birth of the Supreme Court’s Emergency Docket

Was the Clean Power Plan the first executive branch action halted by the Supreme Court’s shadow docket? Was it even the first Obama administration action stopped this way? Legal scholar Stephanie Barclay says no—and points to a 2013 order by Justice Sonia Sotomayor as the true birth of the modern emergency docket.

Last Saturday, the New York Times published internal Supreme Court memoranda from February 2016, declaring that the five-day deliberation over President Barack Obama’s Clean Power Plan marked the birth of the court’s modern shadow docket. Legal experts like Stephen Vladeck and Jack Goldsmith have echoed this claim, framing the Feb. 9, 2016 rulings as the start of the Court’s active engagement with presidential initiatives via interim orders.

But Barclay argues these accounts are incorrect. An earlier interim order blocking an executive branch regulatory program was issued not by Chief Justice John Roberts—but by Sotomayor, acting alone, more than two years before the Clean Power Plan case reached the Court. Her order was later adopted unanimously by the full Court.

The Little Sisters of the Poor Case: A Precedent for Emergency Relief

The case in question involved the so-called “contraception mandate,” a key Obama administration regulatory initiative. The timeline of events was as follows:

• December 27, 2013: A federal district court denied the Little Sisters of the Poor’s motion for a preliminary injunction.
• December 31, 2013: The U.S. Court of Appeals for the 10th Circuit denied the group’s emergency request for an injunction pending appeal.
• December 31, 2013 (evening): Enforcement of the mandate was set to begin at midnight. Sotomayor, acting as the 10th Circuit’s circuit justice, received the emergency application.
• December 31, 2013 (late evening): Sotomayor granted the emergency injunction within hours—before leading the ball drop in Times Square that New Year’s Eve.

The order was issued without merits briefing, oral argument, or explanation. It blocked the federal government from enforcing the contraception mandate against the Little Sisters of the Poor, even though no lower court had found interim relief necessary.

The New York Times editorial board criticized Sotomayor’s ruling as “perplexing,” calling it an “audacious” decision given that both the district court and the 10th Circuit had declined to grant interim relief.

Unanimous Supreme Court Adoption of Sotomayor’s Approach

Three weeks later, without recorded dissent, the full Supreme Court broadened Sotomayor’s injunction to protect several hundred other religious organizations pending the outcome of the Little Sisters’ appeal. By any measure the Times applies to the 2016 orders, this was a modern emergency docket ruling—one that predates the Clean Power Plan case by more than two years.

Barclay’s analysis underscores that the emergency docket’s origins lie not in 2016, but in Sotomayor’s 2013 order—a decision that reshaped how the Court handles urgent executive branch actions.