The Numbers Don’t Lie
There’s a difference between a conservative court and a partisan one. A conservative court applies consistent principles regardless of which party benefits. A partisan court shifts its reasoning to serve one party’s interests.
The shadow docket proves which kind of court we have.
As Charles Tiefer argues at Talking Points Memo, the Supreme Court’s merits docket decisions might reflect consistent conservative judicial philosophy. But the shadow docket—emergency orders issued without full briefing or oral argument—reveals something else entirely: a Court that bends its procedures, precedents, and principles to serve the Trump administration.
The evidence is overwhelming.
The Staggering Statistics
The Brennan Center’s Shadow Docket Tracker documents 25 shadow docket decisions since Trump’s second inauguration on January 20, 2025. The results:
- Administration wins: 20 (80%)
- Administration losses: 5 (20%)
- Decisions without written explanation: 7
According to Ballotpedia, the Court has granted 83% of the Trump administration’s emergency requests as of October 2025.
But raw numbers only tell part of the story. The comparison to prior administrations reveals the true pattern.
A Tale of Two Administrations
Georgetown law professor Steve Vladeck has tracked emergency applications for years. The historical comparison is damning:
| Administration | Years | Emergency Applications |
|---|---|---|
| Bush | 8 years | 4 |
| Obama | 8 years | 4 |
| Biden | 4 years | 19 |
| Trump (first term) | 4 years | 41 |
| Trump (second term) | ~1 year | 32+ |
In its first 20 weeks alone, the second Trump administration made as many shadow docket applications (19) as the Biden administration made over four years.
The second Trump administration has now filed more emergency applications than the Bush, Obama, and Biden administrations combined.
How the Court Treats Different Presidents
The numbers get more revealing when you examine outcomes.
Trump’s First Term: The Court granted 28 of 41 emergency stays (68%), allowing the administration to implement policies while litigation continued, including:
- The travel ban targeting Muslim-majority countries
- Transgender military ban
- Border wall funding redirection
Biden Administration: The Court’s treatment was starkly different. Biden’s very first emergency request—asking to freeze an injunction requiring restart of Trump’s “Remain in Mexico” program—was denied. Even though the DOJ explained in detail how the lower court ruling interfered with presidential discretion and foreign relations—the same arguments that succeeded for Trump—the Court said no.
The Court also blocked Biden’s workplace COVID rules and tenant protection measures on the shadow docket.
Trump’s Second Term: 83% grant rate for emergency applications. When lower courts block Trump policies, the Supreme Court routinely issues stays allowing them to proceed anyway.
As Justice Sotomayor wrote in dissent: “Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”
The Immigration Flip-Flop
Perhaps no issue better illustrates the Court’s partisan behavior than immigration.
In 2022, the Supreme Court ruled 5-4 in Biden v. Texas that Biden could end Trump’s “Remain in Mexico” policy. Chief Justice Roberts wrote the opinion, joined by Justice Kavanaugh and the three liberals. Roberts explained that the word “may” in the immigration statute means the government has discretion—it can return asylum seekers to Mexico, but isn’t required to.
The conservative principle articulated: Presidents have broad discretion over immigration policy. Courts shouldn’t micromanage executive decisions.
In 2025-2026, those same justices have approved Trump’s aggressive immigration enforcement on the shadow docket, including:
- Alien Enemies Act removals
- TPS terminations
- En masse parole revocations
- Expanded investigative stops
The Court that granted Biden discretion to end restrictive policies now grants Trump discretion to impose them—often more extreme ones—through emergency orders without full briefing.
If the principle were “presidential discretion over immigration,” the outcomes would be consistent. Instead, the outcomes are consistently pro-Trump.
The Impoundment Contradiction
The article at TPM highlights another glaring example: impoundment.
Since the Nixon administration, the law has been clear: presidents cannot refuse to spend money Congress has appropriated. The Congressional Budget and Impoundment Control Act of 1974 specifically prohibits it.
Yet when Trump froze foreign aid, scientific research funding, and other congressionally mandated spending, the Court used the shadow docket to allow it to continue—blocking lower court injunctions without articulating any constitutional grounds.
This isn’t conservative jurisprudence. A conservative court respects separation of powers and congressional authority. This Court simply cleared the path for Trump to do what he wanted.
Party-Line Divisions
The partisan nature is reflected in the votes themselves. SCOTUSblog reports that “unprecedented in the history of the Supreme Court, divisions in major emergency stay cases in this decade are usually by strict party lines, with six Republican-appointed Justices in the majority and three Democratic-appointed Justices in dissent.”
This term, the Court issued almost twice as many emergency orders as merits opinions. More than any other term in history, this one has been dominated by the emergency docket—and the emergency docket is dominated by party-line votes favoring Trump.
Topic Breakdown: Where the Court Sided with Trump
The Brennan Center tracker breaks down the cases by topic:
| Topic | Cases | Admin Wins |
|---|---|---|
| Immigration | 9 | 7 (78%) |
| Independent Agencies | 5 | 4 (80%) |
| Civil Service Protections | 3 | 2 (67%) |
| Government Spending | 4 | 2 (50%) |
| DOGE Actions | 2 | 2 (100%) |
| LGBTQ+ Rights | 2 | 1 (50%) |
The administration’s wins include:
- FTC commissioner removal
- Consumer Product Safety Commission changes
- NLRB and Merit Systems Protection Board removals
- Federal workforce reduction
- Education Department mass firings
- NIH grant terminations
- Foreign aid defunding
In each case, the Court issued emergency stays allowing Trump policies to proceed while litigation continues—often without explaining why.
The Justices’ Own Words
The liberal justices have been blunt about what’s happening.
Justice Kagan: “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”
Justice Kagan: “Courts are supposed to explain things.” She emphasized that offering reasons for judicial decisions is an essential protection against arbitrary power—ensuring like cases are treated alike.
Justice Jackson: The Court has permitted “immediate infliction of injury without adequate justification” in multiple immigration cases.
Justice Sotomayor: “Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”
Why This Matters: Ideology vs. Partisanship
Conservative judicial philosophy has identifiable principles:
- Textualism in statutory interpretation
- Originalism in constitutional interpretation
- Judicial restraint and deference to elected branches
- Respect for precedent and stare decisis
- Limited federal power
A truly conservative court would apply these principles consistently. It would defer to presidential immigration discretion regardless of party. It would respect congressional spending authority regardless of who occupies the White House. It would demand the same procedural rigor for all litigants.
That’s not what we have.
What we have is a Court that:
- Granted Trump immigration discretion, denied Biden the same
- Blocked Biden’s COVID measures, enables Trump’s funding freezes
- Demanded full briefing for challenges to Trump 1.0, issues summary orders for Trump 2.0
- Votes party-line on almost every major emergency matter
This isn’t conservative jurisprudence. It’s Republican jurisprudence.
The Legitimacy Crisis
The shadow docket’s partisan pattern creates a legitimacy crisis the Court may not survive.
When the Court explains its reasoning in full opinions after oral argument, observers can evaluate whether the logic is sound. The shadow docket provides no such accountability. Decisions come down with no explanation, making partisan outcomes impossible to justify or critique on legal grounds.
The Court is spending its institutional credibility to serve one administration’s agenda. As Tiefer notes, this risks:
- Legitimacy erosion as the public recognizes partisan behavior
- Lower court resistance as judges question the basis for summary reversals
- Congressional scrutiny as Democrats gain power to investigate
Read more: The Legitimacy Crisis
What Needs to Change
The shadow docket’s abuse strengthens the case for comprehensive reform:
Transparency Requirements: Every shadow docket order should include written explanation. No more unsigned, unexplained orders that reshape American law.
Procedural Safeguards: Emergency relief should be limited to genuine emergencies with clear criteria—not routine policy preferences.
Structural Reform: Term limits, court expansion, and other reforms could address the partisan capture that the shadow docket reveals.
Congressional Action: Legislation to constrain shadow docket abuse and restore congressional spending authority.
Read more: Comprehensive Reform Is Needed
Conclusion: The Evidence Is Clear
You can debate whether Dobbs reflects conservative principles or partisan ones. You can argue about Chevron or Bruen. Reasonable people can disagree about the merits docket.
The shadow docket leaves no room for debate.
An 83% grant rate for one administration. Party-line votes on virtually every major emergency matter. Opposite outcomes for identical legal questions depending on which party holds the presidency. Summary orders without explanation reshaping American law.
This isn’t a conservative court applying neutral principles. This is a partisan court using emergency procedures to serve one party’s interests while avoiding accountability.
The shadow docket is where the Court drops the pretense. And what it reveals is damning.
The Court won’t reform itself. It’s time for Congress and the American people to act.
For more on the shadow docket, read The Shadow Docket and Presidential Immunity: How Emergency Orders Enable Autocracy and The Shadow Docket’s Shocking Truths. For comprehensive analysis of Court corruption, see our main thesis.