Narrator: On the night of September 1, 2021, a constitutional right that had stood for nearly fifty years vanished for millions of American women in Texas. It didn't happen after months of public hearings or a landmark, reasoned decision. It happened just before midnight, through a single, unsigned page issued by the U.S. Supreme Court. The Court’s order in the case of the Texas abortion law, known as SB 8, was cryptic and offered no substantive legal reasoning. It simply allowed a law, which was flagrantly unconstitutional under existing precedent, to take effect. This event left legal experts and the public stunned, wondering how the nation's highest court could make such a monumental decision with so little transparency or accountability.

This puzzling and alarming moment is the central focus of Stephen Vladeck’s book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Nation's Laws. Vladeck reveals that this was not an isolated incident but the culmination of a long, quiet transformation. He argues that the most important work of the Supreme Court is no longer happening in its public, merit-based decisions, but through this opaque and increasingly powerful "shadow docket."

Narrator: The modern Supreme Court’s power grab began not with a bang, but with the quiet accumulation of discretion. In the early 20th century, Chief Justice William Howard Taft successfully lobbied for the Judiciary Act of 1925, which gave the Court the power of certiorari—the ability to choose which cases it would hear. This fundamentally changed the Court from an institution obligated to resolve disputes to one that could set its own agenda, focusing only on issues it deemed nationally important.

Vladeck demonstrates that the power to not decide a case can be as impactful as a formal ruling. The journey to nationwide marriage equality provides a striking example. While most remember the landmark 2015 decision in Obergefell v. Hodges, Vladeck shows that the Court had effectively legalized same-sex marriage in eleven states a year earlier, simply by refusing to act. In October 2014, the Court was faced with appeals from five states where lower courts had struck down marriage bans. Instead of taking the cases, the justices issued a simple, unexplained order: "The petition for a writ of certiorari is denied." By doing nothing, they allowed the lower court rulings to stand, and marriage equality instantly became the law in those states and others in their circuits. As Vladeck explains, the Court’s inaction had a massive substantive effect, setting the nation’s agenda by strategically avoiding a decision.

Narrator: The shadow docket’s evolution into a forum for life-or-death decisions was forged in the crucible of capital punishment. Vladeck traces how the procedural complexities and high stakes of death penalty litigation normalized the use of emergency orders. Because an execution is irreversible, last-minute appeals for stays became common, forcing the Court to make rapid decisions outside its normal, deliberative process.

This trend reached a grim apex during the Trump administration, which resumed federal executions after a 17-year hiatus. The administration scheduled thirteen executions in its final months, and in case after case, lower courts issued stays based on serious legal challenges, such as the constitutionality of the lethal injection protocol. Yet, the Supreme Court repeatedly intervened on the shadow docket. In a series of late-night, unexplained orders, the conservative majority vacated the stays, clearing the path for the executions to proceed. In one case, United States v. Higgs, the Court used an extraordinary procedure called “certiorari before judgment” to hear and decide the government’s appeal on an expedited basis, without full briefing or argument, ensuring the execution could happen just days before the presidential inauguration. Vladeck argues that these cases show a shift from ensuring fairness to prioritizing the finality of the execution schedule, turning the shadow docket into a tool for pushing through a policy agenda.

Narrator: Under the Trump administration, the Solicitor General’s office, traditionally seen as a guardian of the law, began using the shadow docket as an aggressive political tool. Vladeck presents stunning data: in the sixteen years of the Bush and Obama administrations, the government sought emergency relief from the Supreme Court just eight times. In the four years of the Trump administration, it did so forty-one times.

These requests were often aimed at keeping controversial policies in effect after they were blocked by lower courts, such as the travel ban, the transgender military ban, and the “public charge” immigration rule. Vladeck argues the Court’s conservative majority consistently granted this relief, often without explanation, effectively allowing policies of questionable legality to be implemented. This pattern became even more pronounced during the COVID-19 pandemic. Initially, the Court deferred to states on public health restrictions, even when they affected religious services. But after the confirmation of Justice Amy Coney Barrett, the Court’s posture flipped. In Roman Catholic Diocese of Brooklyn v. Cuomo, the Court blocked New York’s capacity limits on religious gatherings, signaling a new, aggressive approach to protecting religious freedom. This established what Vladeck calls a “most-favored-nation” theory, where any secular exception to a rule meant a religious exception was also required, a dramatic legal shift made entirely on the shadow docket.

Narrator: The Supreme Court’s influence over elections has also grown through its use of the shadow docket, particularly through its application of the “Purcell Principle.” This doctrine, originating from a 2006 case, states that courts should not change election rules close to an election to avoid confusing voters. While seemingly sensible, Vladeck argues the Court has applied this principle inconsistently and with a clear partisan bent.

During the 2020 election, the Court frequently invoked Purcell to block lower court decisions that extended mail-in ballot deadlines or eased voting rules in response to the pandemic, decisions that often favored Democrats. Conversely, it allowed last-minute changes that favored Republicans to stand. The 2022 Alabama redistricting case provides a stark illustration. A lower court found that Alabama’s new congressional map likely violated the Voting Rights Act by diluting the power of Black voters and ordered a new map to be drawn. Citing the Purcell principle, the Supreme Court’s conservative majority issued a stay, allowing the illegal map to be used for the 2022 midterm elections. Justice Kagan, in a scathing dissent, noted this was one more case in a “disconcertingly long line” where the Court used the shadow docket to make major changes in the law without full argument.

Narrator: The central argument of Vladeck’s book is that the Court’s abuse of the shadow docket is creating a profound crisis of legitimacy. The power of the Supreme Court does not come from an army or a treasury; it comes from the public’s belief that its decisions are based on principled legal reasoning, not raw political power. Unsigned, unexplained, and inconsistent orders issued in the dead of night erode that trust.

Vladeck dismantles the defenses offered by justices like Samuel Alito, who claim critics are simply weaponizing a “catchy and sinister term.” Vladeck shows that the shadow docket is not just for procedural matters anymore; it is where substantive law is now being made. The solution, he argues, will not come from the Court itself. While there have been minor procedural tweaks, the pattern of unreasoned rulings continues. Instead, Vladeck contends that Congress, which has constitutional authority to regulate the Court’s appellate jurisdiction, must act. It can pass laws requiring the Court to provide explanations for its shadow docket rulings or create expedited pathways for merits review in certain types of cases. Without such external checks, the Court will continue its slide from a respected judicial body into an unaccountable political one.

Narrator: The single most important takeaway from The Shadow Docket is that the Supreme Court’s most consequential work is increasingly happening out of public view, through a process that lacks the transparency, reasoning, and accountability that has long been the bedrock of its authority. Stephen Vladeck masterfully reveals that this is not a procedural quirk but a fundamental shift in how power is wielded by the nation's highest court, with devastating effects on the rule of law.

The book leaves us with a challenging question: What happens when the branch of government designed to be the "least dangerous" becomes both immensely powerful and dangerously opaque? Vladeck’s work is a crucial alarm bell, urging citizens to understand that the Court’s legitimacy is not a given but a fragile trust—one that is currently being broken in the shadows.