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New Resource Catalogues Emergency Petitions and Shadow Docket Rulings

The Brennan Center for Justice has released a new online resource that tracks all the emergency petitions filed by the Trump administration on the Supreme Court’s shadow docket as well as their disposition.

As of today, we’re up to 31 such petitions (29 if you subtract the two cases consolidated with CASA v. Trump), which blows every other presidential administration out of the water.

What’s interesting — or maddening, depending on your perspective — is the frequency with which the justices have granted these petitions and stayed a lower court ruling — a ruling that, mind you, was in most cases accompanied by dozens of pages of measured legal reasoning and that followed a series of briefings, hearings in open court and/or conferences.

In most of these cases, the rulings the justices handed down were not accompanied by any real explanation, which, one would think, the justices would owe the American people given the colossal impact or these rulings (and even more so now, since the justices are citing shadow docket rulings as precedent).

“We are the only branch of government that’s totally transparent,” Justice Barrett told CBS News last month, “because we have to lay out all the reasons for the decisions that we make.” She added at the SCOTUSblog Summit later in September, “We’re the most transparent branch.”

Yeah, no. And the current state of the shadow docket proves it.

At the very least, some of the cases that started out on the shadow docket — on birthright citizenship, the president’s removal power and tariffs — are making their way to the merits docket. We hope this trend continues.

Later this fall, we’ll work with other advocacy groups and lawmakers to make the case for why the shadow docket protocols must change, and in the interim, we hope that you avail yourselves of the Brennan Center resource, since the only thing that’s certain is that more of these emergency petitions, with their thinly-reasoned (if at all) rulings, are coming.

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