While the public has been focused on the occasional high-profile clash between President Donald Trump and the Supreme Court, the court’s conservative supermajority has been quietly using the shadow docket to hand Trump something far more consequential — effective control of the federal government — and legal analysts say that work is now largely complete.
That is the central argument of a new piece by Dahlia Lithwick and Mark Joseph Stern in Slate, who say the popular narrative of a principled Chief Justice John Roberts standing up to Trump conceals a far more troubling reality.
“Trump’s takeover of the federal government is largely complete,” Stern writes. “So I just don’t think the court needs to issue nearly as many shadow docket orders as it did during that shock-and-awe campaign — it has already achieved its objectives.”
The shadow docket refers to emergency orders and procedural rulings the court issues outside its normal merits docket, typically with little explanation and no oral argument. During the first year of Trump’s second term, the conservative supermajority used it repeatedly and rapidly to clear the way for Trump to impound federal funds, fire executive officials, and rewrite immigration law — moves that would have been blocked under previous interpretations of the law.
Lithwick and Stern argue that Roberts has a long-established pattern of using smaller decisions to prepare the ground for larger ones. “Do something small, get people accustomed to it, then do it big,” Stern explains. “The shadow docket has become the way you do that now. You seed the ground on the shadow docket and say: ‘Well, this is the law now.’ This process used to take four or five years. Now, with the shadow docket, you can do it within the same term.”
The authors also push back on the idea that occasional Trump losses at the court represent meaningful resistance. The justices, they argue, only draw the line when Trump threatens the court’s own power and supremacy — not when he threatens civil liberties, voting rights, or the separation of powers more broadly.
That selective resistance, Lithwick warns, may ultimately backfire. The court has repeatedly rewarded Trump for defying lower court orders. “There is no clear reason why that should stop with the Supreme Court,” she writes. “Eventually, the administration won’t just say: It worked all these other times, it should work this time.”
If that happens, Stern argues, the court will have squandered whatever moral authority it had left. “They’ve made me a king,” he writes of Trump’s likely reasoning, “so I’m going to act like one.”
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