Like the weather in the Midwest, about which more is said than done, so too with the Supreme Court’s “shadow docket” or, depending on your preferred locution, the “emergency” or “interim” docket. Now that may change. In an engaging paper, Thomas Schmidt and Kellen Funk propose a new name and a new way of conceptualizing the growing and increasingly important power (and predisposition) of the Supreme Court to intervene in ongoing disputes in the lower federal courts.
As a central element of the Court’s response to Trump II, the spate of shadow docket decisions over the past fifteen months has been nothing less than astonishing. The Trump Administration sought emergency relief in twenty significant cases in the second half of the October Term 2024, almost half as many as the forty-one the First Trump Administration sought in four years. Not only has the Court been setting the status quo pending final resolution, in Justice Kavanaugh’s telling, it has been remaking the substantive law along the way. Caught in the crossfire between an impetuous president and a cautious Court that has accommodated and sought to avoid direct conflict, lower federal courts have been whipsawed. Unable to overrule settled precedent, lower courts have applied the law on the books only to find their orders stayed or vacated by a Court that sees the law differently or strikes a different equitable balance. For example, the Court in the officer removal cases rejected lower court applications of Humphrey’s Executor, then circled back to clarify the situation.
What to do? Schmidt and Funk deploy the maxims of equity from the time of the divided bench to offer a cogent set of solutions. In an oversimplified version of the argument, the authors propose viewing the Court’s docket as consisting of a law side and an equity side, much the way the federal courts approached their divided bench responsibilities in the early republic. On the law side, the Court does its usual work – granting petitions for certiorari, addressing important and divisive questions of law, and formulating rules to govern life in these United States. We know this law side well; it is the familiar Court we learn about in school. On the shadow or equity docket side, the Court performs the classic equitable function of assessing likely success on the merits and irreparable harm as it manages interim applications for stays and injunctions.
That proposed division of labor explains the authors’ suggestion that we rename this the equity docket. What would such a nominal change accomplish? The authors offer the intriguing suggestion that, following the classic approach of equity courts past, “equity should follow law.” That maxim has a number of interesting implications. Perhaps most importantly, it suggests that the Court should deploy its law docket to make the law (or find it or whatnot) and use its equity docket to conduct a more select form of interest balancing in the face of uncertainty. Such an approach would ensure that changes in law take place through the ordinary processes of oral argument, reasoned decision-making, and the considered resolution of important questions that have divided the lower courts.
That change alone would obviate the Court’s practice of overruling settled precedent with limited explanation. It also would help save the Court from its bad habits of failing to explain its results, of hinting at changes in law through equitable decrees, and of decrying lower court decisions that fail to understand the new dispensation. These bad habits are on full display in the Court’s emergency docket rulings on grant terminations. In NIH v. American Public Health Association, Justices Gorsuch and Kavanaugh accused a district court judge of “defy[ing]” their four-paragraph order in Department of Education v. California. Senior District Judge William Young of the District of Massachusetts felt compelled to apologize, explaining that he “simply did not understand that orders on the emergency docket were precedent.” We have seen rugs pulled out from under lower courts on any number of occasions, from pandemic-era religious liberty cases to recent litigation over grant termination and removal of federal officials without cause.
Of course, the authors have more to say. They would encourage reason-giving by the Court, even in the hurried precincts of equity docket work. They would deploy other equitable maxims (such as the principle that those who seek equity must do equity) to help guide the decisional process (and perhaps rein in some of the most outrageous government conduct). And they would call for a reconsideration of the Court’s capricious view that any stay of government action threatens irreparable harm and thus establishes a basis for equitable intervention.
Introducing an equitably constrained shadow docket may provide one additional benefit, not fully explored in the draft I read. Consistent application of the requirement that equity follow law could substantially improve relations between the Supreme Court and the lower federal courts that do the important work of first-instance disposition and review. If the Court were restrained in equity and left legal change to its more readily accessible and orderly law side, lower courts could confidently apply the law without fear that their decisions need to predict future changes. Otherwise, lower courts occupy an impossible position: they cannot predicate their decisions on a prediction that the Court will change the law. As one district court described it, lower federal courts cannot “defy” Supreme Court precedent, but the Court’s decisions “have not been models of clarity, and have left many issues unresolved.”
If, in administering the equity docket, the Court focused on the proper equitable balance and took the law on the books as a given, lower federal courts could do the same. By thus aligning with the applicable law, implementing the equity docket constraint could restore a world in which federal courts at all levels of the Article III hierarchy work together in a judicial department devoted to applying and enforcing the same body of law.
One must of course ask if a change in nomenclature would alter the Court’s behavior. Some equity docket decisions display a marked determination on the part of a bare majority to impose a specific solution to a problem, orderly process and decorum to the contrary notwithstanding. But the task of justification remains, both as the Justices deliberate over outcomes internally and explain those outcomes externally through opinions of the Court. Workways have consequences for the way institutions operate. A self-conscious decision to frame its interim docket as infused with the values of equity may help to shape the set of options the Court sees as available as it contemplates yet another intervention into lower court decision making.
Perhaps it won’t change the weather at the Supreme Court, but it may moderate the gusts.
