The judiciary’s role in the American constitutional scheme, as Marbury v. Madison proclaimed, is to “say what the law is.” For other branches of government and the lower courts to respect and implement those declarations, the Supreme Court’s law pronouncements require reasoned justification. But the Court’s recent orders on emergency proceedings, including two orders issued 2 March 2026, defy this principle and justify the frequent moniker “the shadow docket.”

All courts occasionally confront emergency matters where a failure to decide is a de facto final determination, and the U.S. Supreme Court is no exception. Federal courts have long possessed statutory authority to issue appropriate judicial writs to preserve their jurisdiction. Justices also enjoy statutory power to stay judgment enforcement to preserve cases for later consideration. Historically, the Supreme Court employed these powers with restraint. Injunctive relief, as explained in an in-chambers opinion, was an “extraordinary remedy” to “be employed only in the most unusual case” when the right to relief was “indisputably clear.” Stays issued to ensure cases were preserved temporarily, such as in death-penalty appeals. While the Supreme Court seldom explained these orders, their infrequent use and interim nature minimized potential concerns with transparency and candor.

Over the last decade, however, the Supreme Court has transformed its practice. Today, the Court routinely issues unexplained emergency orders that undercut its prior precedents or implicitly resolve unsettled issues. While this often benefits President Trump’s agenda, the orders extend to other conservative preferences, aptly demonstrated last week.

In Malliotakis v. Williams, the Court issued an “emergency” stay of an election decree from a New York state trial court, even though the state order had not been considered on the merits by the state’s highest court and the election was months away. The state trial court, relying on a state constitutional provision protecting minority voters, had directed the state’s independent redistricting commission to redraw a congressional district as a “crossover” district to equalize minorities’ electoral opportunities. Those defending the existing district, including its current Republican representative, appealed to both the state intermediate appellate court and New York’s highest state court, simultaneously seeking a stay from both. After the state high court transferred its appeal because state procedural law required the intermediate appellate court to hear it first, defendants sought relief the following day from the U.S. Supreme Court.

In a four-sentence unsigned order without any reasoning, the Supreme Court granted the requested stay, barring the trial court’s order protecting minority voters. The only rationale expressed was in a separate solo concurring opinion, contending that the stay was necessary because the order “blatantly discriminates on the basis of race” by ordering a crossover district and the defendants had “nowhere else to turn.” But, as Justice Sotomayor’s three-justice dissent detailed, the defendants never sought relief from the state’s highest court after the procedural transfer, “an obvious place ‘to turn’ to for relief,” which formerly appeared required by the Court’s precedents. Nor had the Court previously resolved the constitutionality of crossover districts. While a plurality of justices in Bartlett v. Strickland highlighted that intentionally creating a crossover district raised “serious constitutional questions,” even those justices did not ultimately opine on whether such a district was constitutional. Malliotakis thus resolved an ongoing state-redistricting proceeding by implicitly settling an open constitutional issue without explanation or the usual briefing-and-argument process.

Last week’s other order in Mirabelli v. Bonta issued through a short per curiam opinion, but the Supreme Court once again extended prior legal precedents without the typical briefing and argument on an “emergency” basis while the same requested relief was pending before a lower court. Mirabelli opined that it was likely that parents possessed an implicit constitutional “liberty” to compel public schools to inform them of their children’s gender transition and adopt parents’ preferred names and pronouns for their children. Yet, as Justice Kagan’s dissent explained, this parental rights extension raised “tricky” interpretive questions under recent decisions that had repudiated a woman’s right to make her own reproductive medical decisions and refused to address parental rights to gender-affirming care.

Such rushed rulings on previously uncertain constitutional grounds exemplify the Supreme Court’s transformed emergency docket. Consequential American constitutional law is now frequently proclaimed from the shadows, with troubling implications for the candor and transparency that is essential to judicial authority.