Over the years, the Supreme Court has sent mixed signals about whether its emergency docket orders carry precedential weight. In 2021, Justice Samuel Alito said publicly that emergency orders are not intended to establish precedent on the underlying issue. Nevertheless, in Tandon v. Newsom, a religious liberty case, the court explicitly faulted the U.S. Court of Appeals for the 9th Circuit for failing to follow its prior emergency docket decisions. And in August 2025, Justice Neil Gorsuch accused lower court judges of risking “anarchy” by questioning the precedential weight of those same orders, in an opinion where multiple colleagues wrote separately, unable to agree on how to apply the very precedent that he was defending.
So what are lower courts actually doing with emergency docket orders? I went to the data to find out.
Turns out: quite a lot
I conducted a citation analysis of 475 substantive emergency applications filed between 2000 and 2024 and found that 53% had been cited by at least one federal court as of October 2025. The Supreme Court itself cited 11% of these decisions in subsequent rulings, including in major merits opinions. In West Virginia v. EPA, for example, the court cited Alabama Association of Realtors v. Department of Health and Human Services, an eight-page emergency order blocking the CDC’s eviction moratorium, as part of the body of cases supporting the major questions doctrine.
Of course, not all cases get cited equally. Roman Catholic Diocese of Brooklyn v. Cuomo leads all categories with 627 federal court citations. There, during the heart of COVID, the court issued a written opinion and established two concrete, frequently applicable rules: that restrictions singling out religious entities while allowing comparable secular businesses to operate likely violate the First Amendment, and that even brief losses of First Amendment freedoms constitute irreparable harm. Every court facing a COVID-era restriction challenge had reason to cite it. Courts also cite emergency orders for reasons beyond their core holdings. Pascale v. Chrysler, decided during the 2008 financial crisis, continues to receive citations 16 years later, not for its bankruptcy holding but for its articulation of stay standards that courts apply repeatedly.
Both reasoned and unreasoned orders get cited
Emergency docket cases with written opinions are more likely to be cited: 68% received at least one citation, compared to 50% of cases without opinions. Furthermore, emergency docket cases accompanied by written opinions averaged 45 citations each, compared to 10 citations for minimally reasoned orders. That is nearly a five to one difference. And that pattern makes intuitive sense: more reasoning gives lower courts more to work with.
But cases without written opinions still collectively accumulated 3,957 citations. That means courts are extracting precedential value even from one-line orders. What does that look like in practice? In one case, Care One, LLC v. NLRB, the U.S. Court of Appeals for the 2nd Circuit cited Trump v. Slaughter, an emergency stay granted without explanation, as authority for the proposition that the Supreme Court had continued to allow the president to remove statutorily protected officers without cause. The reasoning may be absent. The signal is not.
And the number of citations is growing
When I compared citation counts for the same 342 substantive cases available in both April 2023 and October 2025, total citations increased by 63%, from 3,558 to 5,804. The median number of citations per case doubled. Courts are not approaching equilibrium on emergency precedent. They are accelerating.
It is not just one circuit
Finally, this is not just taking place in one or a handful of circuits: it is happening across the board. Indeed, every federal circuit cited emergency applications between 2023 and 2025. The U.S. Court of Appeals for the 5th Circuit saw the steepest growth rate, adding 355 citations, an 89% increase. The 9th Circuit (which handles the greatest volume of federal cases overall) had the highest raw total with 1,209 citations, up 86% from 2023. This is especially notable because the 9th Circuit had one of the most contentious relationships with the emergency docket during the COVID era, repeatedly having its decisions stayed by the Supreme Court. Rather than pulling back from emergency precedent, however, it responded by incorporating it more heavily. The U.S. Courts of Appeals for the 2nd, 4th, and D.C. Circuits all showed substantial growth as well. Again, this is not a regional phenomenon. It is judiciary-wide.
So what does this tell us?
The debate over whether emergency orders should count as precedent is largely theoretical at this point. Courts have already decided the practical question. A precedent system is developing through practice, case by case, citation by citation, without the transparency that normally accompanies precedent-setting.
Lower courts are not the problem here. They are doing exactly what they should, following signals from the Supreme Court. But because emergency orders often contain little or no reasoning, courts applying them must guess at their scope and limits. Indeed, when the Supreme Court itself cannot agree on whether a prior emergency order controls a current dispute, that guesswork becomes harder still. Despite Gorsuch’s claim otherwise, that is not an “anarchy” problem. It is a clarity problem. And the data suggests it is getting more urgent, not less.
