The United States Supreme Court (SCOTUS) considers certain matters on an emergency basis in which a single justice or the entire Court renders a decision without the typical briefing and argument. Generally, an applicant for emergency relief must demonstrate it will suffer irreparable harm if relief is not granted.
The non-merits docket has become known as the “shadow docket”, a phrase attributed to University of Chicago Law professor William Baude, who coined it in 2015. It is called the shadow docket it because the matters are decided outside of the typical procedure on limited briefing and often within days of filing.
In comparison, matters placed on the merits docket are subject to extensive briefing and oral argument. Decisions usually do not issue for several months after argument is held.
Historically, rulings of serious legal consequence or political importance were not adjudicated on the shadow docket. Since 2017, critics of the shadow docket have observed an uptick in matters resulting in consequential rulings.
Given the manner in which shadow docket matters are briefed and determined, concerns have been raised about bias, a lack of accountability, and a lack of transparency in how the SCOTUS decides the disputes that come before it on the shadow docket.