On the Supreme Court's Hidden Hand in Immigration Policy

On September 11, 2019, the Supreme Court issued an unsigned per curiam order that dramatically altered the course of a major immigration policy. In a one-paragraph decision containing no explanation, the Court stayed a nationwide injunction that had blocked enforcement of the Trump administration's new "asylum-transit" rule, a regulation denying asylum eligibility to any non-citizen who traveled through a third-world country en route to the United States without first seeking protection there. The state meant that the government could immediately implement the asylum transit ban despite lower courts' findings that the policy likely violated federal immigration law and administrative procedural requirements. Justice Sonia Sotomayor filed a brief dissent where she warns that the Court's precipitous intervention short-circuited the normal judicial process and failed to honor the "extraordinary" showing needed for such emergency relief. Apart from Sotomayor's dissent, however, the court offered no legal reasoning for its decision.

Far from being an isolated aberration, this episode reflected a broader pattern from 2018 to 2025, where the Roberts Court has increasingly used its emergency or shadow docket to intervene in high-stakes immigration disputes. The Supreme Court's extensive reliance on this shadow docket in immigration litigation amounts to a procedural violation of the court's traditional institutional role in checking executive action. In case after case, the Court issued summary, unsigned, and largely unreasoned orders staying lower-court injunctions, thereby allowing contested executive policies to take effect on a provisional basis – often long before any full merits review could occur. These practices have displaced meaningful interim judicial review as a constraint on executive authority, and shifted the balance of interpretive power between the Supreme Court and the lower federal judiciary heavily in favor of the former. 

The term "shadow docket" refers to the collection of Supreme Court orders and summary decisions that fall outside the Court's regular merits docket. These include emergency stays, injunctions, summary reversals, and other orders often issued without full briefing, oral argument, or signed opinions. Historically, the Court's non-merits docket attracted little public attention and was used sparingly for urgent matters such as last-minute execution stays or routine case management orders. In the past, Justices generally hesitated to resolve significant policy questions through emergency procedures; as a "court of final review and not first view," the Supreme Court traditionally waited for issues to percolate through lower courts before rendering a decisive judgment. Until recently, it was rare for the Court to grant a stay of a lower court's ruling pending appeal – such relief was considered an extraordinary intervention, reserved for circumstances in which the applicant could make a strong showing of likely success on the merits and irreparable harm, among other stringent factors. As Justice Sotomayor noted in 2019, "[h]istorically, the Government has made this kind of request [for a stay pending appeal] rarely; now it does so reflexively."

Beginning around 2017, observers documented a marked uptick in the Court's willingness to entertain and grant emergency relief in politically-charged cases, particularly those involving controversial executive policies. From here, the shadow docket expanded in scope and visibility. In the first three years of the Trump Administration, the Solicitor General filed at least 20 applications for emergency stays of lower court rulings (including 10 in a single Term), whereas across the entire 16 years of the Bush and Obama Administrations combined, only 8 such applications were filed. In other words, the Trump Administration aggressively treated the Supreme Court as an avenue for immediate relief from adverse lower-court decisions, and the Court proved far more receptive to these entreaties than it had been in the past. Empirical studies confirm that the beneficiaries of the shadow docket's expansion have predominantly been conservative-aligned litigants and government actors seeking to revive policies struck down below. For instance, in the Court's 2021–22 Term, "conservative interests fare[d] better on the emergency docket" than liberal interests, mirroring (and in some respects exceeding) the conservative majority's advantage on the merits docket.

A significant subset of these shadow docket interventions arose from nationwide or universal injunctions issued by lower courts in immigration and other cases. Trial judges began to use broad injunctions to halt the enforcement of federal policies not just as to the named plaintiffs but on a universal scale – a practice that proponents viewed as necessary to fully remedy unlawful government action, but which critics argued exceeded traditional judicial authority. The Executive Branch repeatedly turned to the Supreme Court to halt such nationwide injunctions, and the Court often obliged through emergency stays. Indeed, the Congressional Research Service observed that the Supreme Court's shadow docket has become a tool for the government to counter expansive lower-court decrees: in case after case, when a single district judge barred an immigration policy nationwide, the government's immediate stay application would reach the Justices, effectively fast-tracking the dispute to the Supreme Court's doorstep. Justice Gorsuch encapsulated the majority view of this trend in a 2020 concurrence, criticizing the "increasingly common practice of trial courts ordering relief that transcends the cases before them" and warning that such universal injunctions are "patently unworkable" and inconsistent with the judicial role. Whether motivated by concerns over judicial overreach from below or by sympathy to the policies at issue, the Court's readiness to suspend lower-court injunctions became a defining feature of the late 2010s and early 2020s. Nowhere was this more evident than in the scope of immigration law, where contentious executive initiatives met stiff resistance in the lower courts – only to find a reprieve via the Supreme Court's emergency orders.

That the shadow docket has significantly influenced immigration policy can be seen through a series of high-profile Supreme Court cases which allowed the executive branch's agenda to proceed, despite ongoing legal challenges. One early example is Barr v. East Bay Sanctuary Covenant (2019), arising from the asylum transit rule mentioned above. In that case, a federal district court had preliminarily enjoined the new rule nationwide upon finding that the policy likely conflicted with the Immigration and Nationality Act and violated the Administrative Procedure Act's procedural requirements. The Ninth Circuit Court of Appeals, while narrowing the injunction's geographic scope, refused to entirely stay the district court's order, reasoning that the government had not met the stringent criteria for a stay pending appeal. The Trump Administration then made the unusual move of seeking emergency relief from the Supreme Court, essentially asking the Court to step in mid-litigation and allow the rule to take effect. The Supreme Court granted the stay. Its terse order did not engage with the merits of the legal issues, nor did it explain why interim relief was justified. However, Justice Sotomayor's dissent sharply rebuked the majority for treating an "extraordinary" remedy as routine. Emphasizing that a stay pending appeal is "extraordinary" relief requiring an "especially heavy" burden of proof, Sotomayor argued that the government's application failed to clear that bar. She noted that the district court's detailed findings raised serious questions about the rule's legality – the rule appeared to "rewrite" the asylum statute and was possibly "arbitrary and capricious" in ignoring evidence – and that the normal appellate process should not be short-circuited under such circumstances. Most pointedly, Justice Sotomayor cautioned that the Court's repeated acquiescence to the executive's stay requests was effectively "transforming" its emergency docket into "a new normal" of ad hoc policymaking. In a memorable passage, she wrote that "the Court ... sidesteps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rulemaking process." Despite these warnings, the asylum transit rule was allowed to remain in force for the duration of the litigation. The policy was eventually rescinded under a new administration, but not before it had been operative for many months under the Supreme Court's stay. 

Another paradigmatic case is Department of Homeland Security v. New York (2020), concerning the Trump Administration's "public charge" rule. Announced in 2019, this rule dramatically expanded the definition of a public charge – a ground for denying visas or green cards – to include noncitizens who had received, or were deemed likely to receive, various forms of public assistance. Multiple lawsuits were filed, and a judge in the Southern District of New York issued a nationwide preliminary injunction preventing the rule from taking effect, finding that the plaintiffs were likely to succeed on claims that the rule was contrary to the longstanding meaning of "public charge" and was arbitrary and capricious under the APA. The Second Circuit declined to stay that injunction. Once again, the government turned to the Supreme Court's emergency docket. In January 2020, the Supreme Court, by a 5–4 vote, granted the stay and freed DHS to enforce the public charge rule pending appeal. Although the order itself was unsigned and provided no reasoning, Justice Gorsuch wrote a separate concurring opinion explicitly critiquing the proliferation of nationwide injunctions. He lamented the "confusing" patchwork of lower court orders, with various district courts having issued overlapping or conflicting injunctions on the public charge rule, some limited geographically, others universal. Gorsuch opined that "the real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them." Moreover, he referred to such broad injunctions as a novel judicial invention that "raise serious questions" under Article III, and suggested that the Supreme Court would eventually need to confront their legitimacy. In the meantime, by staying the New York judge's injunction, the Court allowed the public charge rule to go into national effect, even as legal challenges continued. Notably, no full Supreme Court opinion ever adjudicated the merits of the rule. The case became moot in 2021 after a change in administration led to the rule's rescission. But for the period the rule was in force, the emergency stay tilted the playing field toward the executive's position, overriding the lower courts' assessment that the rule was likely unlawful.

These early cases set the tone. From 2018 through 2021, virtually every major change in immigration enforcement or policy generated swift litigation and, frequently, an eventual trip to the Supreme Court's shadow docket. The pattern became familiar: a district court (often in an urban district like Northern California or Southern New York) would issue a nationwide injunction blocking a controversial policy – for example, restrictions on asylum eligibility, the rescission of DACA (Deferred Action for Childhood Arrivals), or rules expanding fast-track removals. The government would then apply to the Supreme Court for an emergency stay, arguing that the lower court's universal injunction was overbroad and that the policy in question addressed urgent governmental interests. More often than not, the Supreme Court would grant the stay by a narrow vote, allowing the policy to be implemented. In many instances, these interim orders effectively decided the fate of the policy; either the case would later fizzle out (due to mootness or procedural turns), or the Supreme Court's hand was tipped so strongly that lower courts got the message. Commentators began referring to this feedback loop as an "immigration shadow docket" unto itself – a subset of the shadow docket defined by immigration cases and remarkable for the frequency of one-sided relief favoring the government.

Even as administrations changed by the mid-2020s, the Supreme Court's aggressive use of emergency relief in immigration matters persisted. A notable recent instance occurred in Noem v. Doe (2025), which involved the Biden Administration's CHNV parole program. Under that program, nationals of Cuba, Haiti, Nicaragua, and Venezuela were granted humanitarian parole to enter and reside in the United States temporarily, with the potential to apply for permanent status. In early 2025, the new Trump administration moved to terminate the parole program and revoke the parole status of roughly 532,000 individuals, arguing that the program exceeded executive authority. A federal district court (in a suit initially brought by the State of Texas and other plaintiffs) issued an injunction blocking DHS from mass-revoking the parole without case-by-case review, reasoning that such action likely violated the agency's statutory parole authority and would cause irreparable harm to hundreds of thousands of people. The Fifth Circuit declined to stay the injunction. The Department of Homeland Security then sought emergency relief from the Supreme Court. In May 2025, the Court granted a stay of the district court's order by a 7–2 vote, thereby permitting DHS to proceed with dismantling the parole program immediately. As with the prior cases, the majority's order was issued without a written opinion explaining its rationale. Justice Ketanji Brown Jackson, joined by Justice Sotomayor, dissented, criticizing the Court's intervention. In her dissenting opinion, Justice Jackson emphasized that the government had not demonstrated irreparable harm from the injunction (a key stay requirement) beyond the political preference to rescind the program, and she faulted the majority for failing to explain which aspect of the case – "standing, the merits, or the scope of relief" – formed the basis of its decision. Without such guidance, Jackson warned, neither the parties nor other courts could know how to tailor their arguments or rulings going forward. Nevertheless, the stay was in place, and DHS quickly began issuing parole termination notices. The upshot was that nearly half a million individuals stood to lose their lawful status and work authorization within weeks, despite substantial questions about the legality of that outcome. The interim nature of the Court's order did not diminish its real-world impact; by the time the appeal would reach full briefing, many affected individuals could have been placed in removal proceedings. In effect, the Supreme Court's shadow docket decision became the de facto adjudication of the policy's validity, at least for the crucial months in question.

The Roberts Court's extensive use of the shadow docket in immigration and similar cases has not only substantive effects but also perceptual and ideological ones. Critics argue that the pattern of outcomes on the emergency docket has exacerbated concerns that the Court is acting in a partisan or ideologically driven manner. As noted, the vast majority of emergency relief grants in recent years have aligned with conservative policy outcomes – for instance, allowing enforcement of strict immigration rules, expansive executive detentions, or restrictions on asylum and humanitarian relief – whereas requests that would produce more liberal outcomes (such as blocking enforcement of said policies) have fared poorly. This is perhaps unsurprising given the Court's 5-4 (and later 6-3) conservative supermajority; the emergency docket simply reflects the same ideological orientation that dominates the merits docket. Yet the streamlined, opaque nature of shadow docket decisions can make the ideological tilt more stark. A Justice can more easily vote for an unexplained stay that happens to align with her policy preferences than join a lengthy opinion that openly articulates a controversial rationale. Indeed, the shadow docket allows the Court to render consequential decisions without the usual accountability: there is no signed opinion to dissect, and often not even a public tally of how each Justice voted. This dynamic, as one scholar put it, "makes the Court look even more sharply partisan in its shadow docket rulings than in its decisions on the merits." The perception (whether accurate or not) that the Court is granting emergency relief based on the identity of the party or the political valence of the policy – rather than strictly legal metrics – can diminish public confidence in the Court's impartiality.

The Court's liberal Justices have voiced especially strong objections to the majority's use of the shadow docket in divisive cases. Justice Elena Kagan, for example, has been a consistent critic of deciding weighty issues through rushed, unexplained orders. In Whole Woman's Health v. Jackson (2021), a case involving a Texas abortion law enforced through a novel private mechanism, the Supreme Court declined to block the law on an emergency application. In dissent, Justice Kagan scathingly described the majority's shadow docket approach as "unreasoned, inconsistent, and impossible to defend." She argued that such handling of complex disputes "every day becomes more unwise," pointing to the fact that the Court's procedural short-cuts leave lower courts and litigants in a state of uncertainty. Although Whole Woman's Health was not an immigration case, Kagan's critique applies broadly to the Court's recent practice: deciding monumental questions "without full briefing or argument, and without any guidance for the lower courts" undermines the predictability and legitimacy of the law.

Justice Sotomayor, too, has repeatedly decried the Court's emergency orders, especially in immigration matters. We have already seen her warnings in the 2019 asylum transit rule case. More recently, in the Los Angeles immigration "roving patrol" case of 2025 (when the Court lifted a lower-court freeze on aggressive immigration raids in Southern California), Sotomayor authored a passionate dissent. The case involved an injunction against ICE and Border Patrol agents conducting sweeps and stopping individuals based on race or appearance – practices a district judge found likely unconstitutional. The Supreme Court's conservative majority, over the dissents of Sotomayor, Kagan, and Jackson, granted the government's emergency request to reinstate those enforcement tactics. The order again came with little explanation; only a brief concurrence from Justice Kavanaugh attempted to justify the decision on "common sense" grounds of law enforcement need, while no majority opinion delineated the legal basis of the ruling. Justice Sotomayor's dissent, joined by her fellow liberals, condemned the Court's action as an affront to constitutional guarantees and fundamental fairness. She noted that the majority provided no clarity as to whether its decision rested on a jurisdictional issue, the likelihood of the government's ultimate success on the merits, or the permissibility of a nationwide scope for the injunction. In Sotomayor's words, "[n]either the district court nor the parties will know whether the majority believed the key issue was standing, the merits, or the scope of relief, any one of which could have been the basis for the majority's order." Such ambiguity, she argued, leaves the lower courts in a quandary and effectively invites the government to continue contested practices without judicial check. Sotomayor also brought to attention the human stakes: allowing officials to "seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job" – absent meaningful judicial review – was, in her view, "unconscionably irreconcilable" with constitutional ideals.

These pointed dissents illustrate the deep rift within the Court regarding the proper use of its emergency docket. On one side, the majority (often silently) has prioritized immediate enforcement of the executive's policies, frequently emphasizing the disruptions caused by broad injunctions and the executive's prerogatives in matters like immigration and security. On the other side, the dissenters have sounded alarms: the erosion of normal standards for relief, the lack of transparency, and the risk that temporary orders will effectively decide cases in a manner skewed toward one litigant. Immigration policy has been a signature issue for the administrations in question, and the Court's emergency interventions have tended to favor the more restrictionist approaches characteristic of the Trump Administration. To many observers, the pattern of who wins on the shadow docket appears more than coincidental. At a minimum, it reflects the Court's philosophical tilt; at worst, it suggests a willingness to quietly entrench one side's policies without the formality and accountability of full opinions.

Beyond questions of perception or fairness in individual cases, the Roberts Court's reliance on emergency orders in immigration disputes has significant procedural implications. One consequence is a subtle but important recalibration of how judicial review operates in the administrative state. Immigration enforcement policies often blur the line between rulemaking and executive discretion. As Professor Mila Sohoni has observed, modern administrations frequently engage in what she terms "enforcement lawmaking," effectively setting nationwide policy through enforcement guidelines and executive actions in lieu of formal regulations. When such executive actions are challenged in court, judges are not merely refereeing concrete disputes; they are reviewing broad policy choices under the guise of interim relief. In theory, judicial review is meant to be a back-end, case-by-case check on agency action; courts address whether a given rule or decision is lawful. However, the spate of immigration cases on the shadow docket saw courts – especially the Supreme Court – making front-end determinations about whether an entire policy should be operative while its legality is litigated. This shifts the courts' role toward a kind of quasi-supervisory function over executive policy. Instead of the Court definitively saying "Policy X is lawful or unlawful" after thorough consideration, the emergency posture forces a hurried, provisional judgment: Should Policy X be allowed to go forward for now? In doing so, the Supreme Court often necessarily weighs factors like the public interest and equitable considerations, essentially second-guessing the executive's urgency claims versus the harms alleged by plaintiffs. Yet because these decisions come without full process, the risk is that the Court's "yes" or "no" at the interim stage is not based on a settled view of legality but on a more freewheeling assessment of stakes and likelihoods. As Sohoni's work suggests, the more that enforcement decisions resemble broad lawmaking, the more pressure is placed on courts to oversee those decisions in real time – a role that courts are institutionally ill-suited to perform without the benefit of a full record and deliberation. The shadow docket amplifies that tension: it thrusts the Supreme Court into an early, often determinative gatekeeping position, effectively saying which policies may be enforced and which must be paused, long before the normal judicial process has run its course.

Another consequence is the distortion of precedent and vertical consistency in the federal judiciary. Normally, when the Supreme Court resolves an issue, it provides a rationale that lower courts must follow – such is the essence of stare decisis and hierarchical judicial review. However, when the Court issues an unexplained stay or vacates an injunction without opinion, it leaves lower courts guessing about the reasoning. Legal scholar Cole Waldhauser has warned of the dangers of treating such shadow docket orders as if they were precedents. In the immigration context, for instance, suppose the Supreme Court stays a nationwide injunction against a certain deportation policy, but says nothing about why. Lower courts faced with similar policies or challenges might infer that a majority of Justices found the policy likely lawful (hence the stay), or they might surmise that the issue was simply deemed urgent regardless of underlying merits. Different judges may draw different inferences. The result can be "precedential drift," where various courts interpret the shadow docket signals in divergent ways, leading to inconsistency and confusion. Waldhauser points out that while these emergency orders lack the formal hallmarks of precedent – no clear holding, no reasoning, often no disclosure of which Justices voted how – in practice they do influence judicial behavior. Particularly in immigration cases, a Supreme Court stay of an injunction can effectively freeze the legal status quo nationwide, sending a strong hint that the policy might ultimately be upheld. Subsequent courts may hesitate to rule against the government, even if the Supreme Court's order was not a decision on the merits. Over time, this dynamic risks creating a shadow body of case law: doctrines and understandings that are derived from the Supreme Court's unexplained actions rather than its reasoned decisions. Such a development is troubling from the standpoint of legal clarity. It undermines the ideal that lower courts follow the Supreme Court's precedents – because here there is, strictly speaking, no precedent to follow, only a one-line order. The judiciary's internal coherence suffers when trial and appellate judges must read tea leaves to discern the Supreme Court's intent. This vertical uncertainty is especially problematic in fast-moving policy arenas like immigration, where officials, litigants, and affected individuals need to know the governing rules. If a district judge's injunction is stayed without explanation, are other judges supposed to issue or withhold similar injunctions in other cases? The absence of reasoning leaves them without a principled basis to decide. 

Transparency and accountability are also at stake. Studies have quantitatively tracked the Supreme Court's use of the shadow docket and found a trend of increasing grants of emergency relief to the federal government, coupled with a lack of transparency in how those decisions are made. Unlike merits cases, emergency applications are resolved in the shadows – often late at night, with minimal briefing, and typically without oral argument. The Court does not always even announce the vote count or authorship of these orders. For example, in several immigration-related orders, the public learned of dissenting Justices only if they chose to note their dissent or write separately. This opaqueness can shield the Justices from scrutiny and public accountability. If the Court does not say why it allowed or halted a policy, it is difficult for observers to evaluate whether the decision was based on a neutral application of legal standards or something more result-oriented. The Justices themselves, of course, might have sound legal reasons discussed internally. But the failure to articulate those reasons stands in contrast to the Court's normal practice of explaining its judgments. Over time, the normalization of unexplained orders "undermines horizontal transparency (across similar cases) and vertical accountability (between the Supreme Court and lower courts)." It becomes harder to hold the Court to account for inconsistencies – because without reasoning, it's hard to even pinpoint if two different orders are inconsistent or distinguishable. Furthermore, lack of transparency can erode public trust. When major policies affecting hundreds of thousands of people hinge on midnight orders that come with no explanation, the public may perceive the judiciary as arbitrary or, worse, as covertly partisan. This perception, even if unjustified, is itself damaging to the Court's institutional legitimacy.

Finally, the practical human consequences of these emergency decisions cannot be ignored. The Court's procedural rulings have direct, tangible fallout. When the Supreme Court in 2025 stayed the injunction protecting CHNV parolees, it green-lit the potential "stripping of lawful status" from roughly half a million people who had been living and working in the United States under government-granted parole. According to a report by Human Rights First, within days of the Court's order, DHS had begun mass issuance of parole termination notices, plunging families into legal limbo and panic about their futures. This occurred without any judicial finding on the ultimate lawfulness of DHS's action; the Supreme Court gave no indication whether it thought DHS was statutorily authorized to terminate parole en masse. The fallout was exacerbated by the fact that immigration attorneys and lower courts lacked guidance on how to handle the ensuing flood of cases. Was DHS's move likely within its powers, as the stay implied? Or would it later be deemed unlawful, meaning the terminations should eventually be reversed? The Supreme Court's silence left those questions hanging. In effect, the shadow docket gave the executive a provisional victory with momentous consequences, and left everyone else to sort out the aftermath in a fog of uncertainty. Human rights advocates argued that this kind of "stop-go" policymaking by judicial edict undermines the rule of law and humanitarian commitments, as people lose rights one week and might or might not regain them in the future depending on opaque judicial currents. Even beyond this particular case, the broader result is a weakening of the constraints on executive power. The promise of judicial review is that agencies must ultimately justify their actions in court under the rule of law. But if, time and again, a determined executive can implement even legally dubious policies for a year or more – affecting lives and systems in the interim – because the Supreme Court's emergency orders permit it, then the effective power of the executive is enlarged relative to the judiciary. Policies can be carried out to completion or until mootness, insulated from full judicial correction by the Supreme Court's interim blessings. This dynamic does not remove the courts from the equation – they still loom in the background – but it does recalibrate the balance, allowing the executive to run ahead of the "final" judicial check and sometimes to avoid that check altogether.

For the Supreme Court, continued use of the shadow docket in this manner risks politicizing the judiciary's image and diminishing the quality of legal reasoning that guides the nation's jurisprudence. For the lower courts, it means their careful work can be swept aside without clarification, complicating their ability to develop the law coherently. And for the executive branch, it offers both a tempting shortcut around adverse decisions and a potential crutch that may encourage aggressive legal positions in the expectation that the Court will offer a quick bailout. The long-term equilibrium between branches may thus be altered: interim judicial review is at risk of becoming a mere speed bump, easily overcome by a concerted government appeal to the highest court's shadow docket. In the arena of immigration, where policies directly touch the lives of millions and implicate fundamental rights and humanitarian values, this procedural shift bears far-reaching consequences. If the judiciary's role as guardian of the rule of law is to be maintained, there may be a need for internal reforms or greater self-restraint by the Court in deploying its extraordinary shadow docket powers. Otherwise, this period may come to be seen not as an aberration but as the beginning of a new normal: one in which the Supreme Court, operating through swift midnight orders, increasingly becomes the prime mover in the fate of national policies, for better or for worse.