CREATORS: The U.S. Supreme Court's Mysterious Shadow Docket

Matthew T. Mangino
CREATORS
September 30, 2025

The U.S. Supreme Court's "Shadow Docket" conjures up this mysterious image of justices surreptitiously moving through the Supreme Court building in the dead of night, making monumental, yet anonymous decisions.

University of Chicago law professor William Baude first coined the phrase "Shadow Docket" in 2015. The name may be modern, but the concept has been around as long as the Supreme Court itself. The term refers to the U.S. Supreme Court's practice of issuing emergency orders and summary decisions outside its regular case docket, typically without oral argument.

Traditionally, the Shadow Docket was rarely used. Like seeking injunctive relief in a trial court, a litigant had to prove that they would suffer irreparable harm if the request was denied.

According to Jack Laskey, writing on EBCO, a litigant wishing to get their case decided via the Shadow Docket applies to any one of the nine justices, who can then forward the case to the rest of the Court for review. If at least five of the justices agree to grant the litigant's request, the case is placed on the Shadow Docket.

There have been 25 emergency applications sent to the court by the Trump administration this year. In each of those cases, a lower court had ruled that the president's actions were unconstitutional.

For example, recently in California, judges ruled that immigration agents could not arrest someone without reasonable suspicion based solely on a person's ethnicity or the language they spoke. President Donald Trump sent an emergency request to the Supreme Court to overrule the decision of the California judges and lift that ban.

In Noem v. Perdomo, the Court allowed immigration agents to consider race, language and work status when deciding whom to stop in Los Angeles.

Cooley Law School Professor Joseline Jean-Louis Hardrick wrote about how the Shadow Docket is impacting fundamental protections previously provided by the Supreme Court. In 1968, the Court created the "reasonable suspicion" standard in Terry v. Ohio. It was meant as a compromise, allowing police to act on less than probable cause while protecting civil liberties.

Justice Brett Kavanaugh, concurring with the majority in Noem, wrote that while ethnicity alone cannot justify a stop, it "can be a relevant factor when considered along with other salient factors." That formulation opens the door for immigration agents to use race, language, and class as part of the suspicion calculus.

Justice Sonia Sotomayor dissented, writing, "We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent."

University of Texas law professor Stephen Vladeck examined the implications of the Shadow Docket in his book, "The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic."

According to NPR's Nina Totenberg, Vladeck pointed to a speech Justice Amy Coney Barrett gave in 2021, in which she assured the audience that the current court "is not composed of partisan hacks" and urged people to "read the opinions." But as Vladeck noted, "What's remarkable about the Shadow Docket is that so often the court is handing down rulings with massive impacts in which there's no opinion to read."

"We may not agree with the specific principles the justices are articulating" in major decisions, Vladeck wrote, but at least we have some sense that these decisions are based on legal principles. In contrast, he argued, "The shadow docket has none of that."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Florida carries out 13th execution of the year

 The 34th Execution of 2025

Victor Tony Jones, 64,convicted of killing a married couple during a robbery in South Florida in 1990 was put to death September 30, 2025 in a record 13th execution this year in the state, reported The Associated Press.

Jones was pronounced dead at 6:13 p.m. following a lethal injection at Florida State Prison near Starke. Jones’ death extended Florida’s record for total executions in a single year, with the state planning to carry out two more executions next month.

The curtain to the viewing room opened right at the scheduled 6:00 p.m. start of the procedure. Asked if he had any last statement, Jone said, “no, sir.” Then the drugs began flowing. His chest began to heave for a few minutes, then slowed and stopped completely.

The warden shook Jones and shouted his name several minutes into the procedure, but there was no response. Jones’ face lost color as he laid motionless, and a medic eventually entered the death chamber and declared him dead minutes later. Officials said the execution was without complications.

“After seeing what I saw tonight, I wish my parents had that opportunity to die so gracefully, close your eyes and just go,” said Irene Fisher, daughter of the victims. “They were violently killed. My father fought for 20 minutes with a stab wound in his heart, and my mother died instantly in the bathroom on a cold floor.”

Jones was a new employee at a Miami business owned by Matilda and Jacob Nestor in December 1990 when he stabbed the woman in the neck and her husband in the chest, court records show. Investigators determined that despite his wounds, Jacob Nestor managed to retreat to an office, unholster a .22 caliber pistol and fire five times, striking Jones once in the forehead.

Police said they found Jones wounded at the scene with the Nestors’ money and personal property in his pockets. Jones was hospitalized and later convicted of two counts of first-degree murder in 1993 and sentenced to death. The jury also found him guilty of armed robbery.

Fisher attended the execution of her parents’ killer with her own two adult daughters and three other family members. She said she had mixed emotions, as she had never watched anyone die before. But she said she was glad it was finally over and that justice had been served.

The Nestors owned a medical supply store in Miami’s Wynwood neighborhood, years before it became an internationally known arts and entertainment district. The building where the business had been located is now a community center.

“My parents would have loved that because they were always helping people in the community,” Fisher said.

Since the U.S. Supreme Court restored the death penalty in 1976, the highest previous annual total of Florida executions was eight in 2014. Florida has executed more people than any other state this year, followed by Texas with five.

Jones filed an appeal with the Florida Supreme Court earlier this month, based on intellectual disability and alleged abuse he suffered as a teen at a since shuttered state-run reform school. The court denied the claims, finding the disability issue had already been litigated and that allegations of abuse were never presented at trial.

Hours before the execution, the U.S. Supreme Court rejected a final appeal without comment.

With Tuesday’s execution, a total of 34 men have undergone court-ordered execution so far this year in the U.S., and at least eight other people are scheduled to be put to death during the rest of 2025.

Barring legal reprieves, two more executions loom next month in Florida under death warrants signed by the Republican Gov. Ron DeSantis.

Samuel Lee Smithers, 72, is scheduled to be executed on Oct. 14. He was convicted of killing two women whose bodies were found in a rural pond in 1996.

Norman Mearle Grim Jr., 65, is scheduled to be put to death Oct. 28. He was convicted of raping and killing his neighbor, whose body was found by a fisherman near the Pensacola Bay Bridge in 1998.

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