U.S. Supreme Court
Should a Supreme Court ruling on its emergency docket be deemed binding precedent in the lower courts? Until recently, I would have thought no, the law would not allow it. Rulings on the emergency docket are without the benefit of full briefing or any oral argument. Often there is little or even no explanation from the court.
But in some recent rulings, including on Aug. 21, the court indicated that it intends lower courts adhere to shadow docket rulings as it would with decisions on the merits. This, like many of the developments concerning the emergency docket, is troubling.
There has been a great growth of matters on the court’s emergency docket. In October Term 2023, there were 44 matters on the emergency docket. In October Term 2024, through June 27 (the last day decisions were released), there were 113 matters on the emergency docket. Some of this, of course, is a result of the many challenges to executive orders from President Donald Trump.
But the emergency docket is not new. There always have been emergency motions to the court such as in death penalty cases where a person is seeking a last-minute stay of execution. But what is new is the Supreme Court actually deciding major issues on the shadow docket and treating these rulings the same as decisions on the merits and as binding precedents that lower courts must follow.
This was seen in July in Trump v. Boyle, which involved whether President Trump could fire members of the Consumer Product Safety Commission even though there was a statute providing that its members could be removed only for just cause. On May 22, the Supreme Court issued a ruling on its emergency docket in Trump v. Wilcox. That case involved President Trump firing a commissioner on the National Labor Relations Board and also the chair of the Merit Systems Protection Board. Federal statutes protected them from removal unless there was good cause for their firing.
In 1935, in Humphrey’s Executor v. United States, the Supreme Court unanimously held that Congress may create federal agencies and provide that removal of top-level officials could occur only if there was cause. In Trump v. Wilcox, the United States Court of Appeals for the District of Columbia Circuit, in an en banc decision, said that under Humphrey’s Executor the firings of Gwynne Wilcox and Cathy Harris were impermissible.
But the Supreme Court in a 6-3 ruling stayed the district court’s preliminary injunction stopping the firings. The court indicated that it might agree that the president can fire agency heads notwithstanding federal laws, but it said that “question is better left for resolution after full briefing and argument.” The court said: “The stay also reflects our judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”
There was no other explanation in the court’s opinion, which was a page and a half long. But then in Trump v. Boyle, on July 23, the court said that the issue of the firing of the commissions on the Consumer Product Safety Commission had been resolved in Trump v. Wilcox. The court said, “The application is squarely controlled by Trump v. Wilcox. Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.”
The court thus treated a ruling on the shadow docket, not the 90-year-old precedent, as binding on lower courts. Justice Elena Kagan wrote a dissenting opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, lamenting this. Kagan said: “Our emergency docket, while fit for some things, should not be used to overrule or revise existing law. … It is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law.”
More emergency docket cases become binding precedent
In National Institutes of Health v. American Public Health Association, the court again treated a short order in an emergency docket matter as binding precedent. Indeed, Justice Neil Gorsuch, in a concurring opinion, chastised the lower courts for not obeying the court.
On April 4, 2025, in Department of Education v. California, the court, in a 5-4 ruling, overturned a district court’s temporary restraining order preventing the Department of Education from cutting off $65 million in teacher training grants. In a brief opinion, the court said that the government was “likely to succeed” in showing that the district court lacked jurisdiction because “the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on ‘any express or implied contract with the United States.’”
The court also expressed concern that if the federal government was ordered to spend the money and if this was later deemed incorrect, the federal government could not recoup the funds. Each of these points was made by the court in less than a paragraph.
On Aug. 21, the Supreme Court, again 5-4, applied this to say that the district court and the United States Court of Appeals for the First Circuit erred in enjoining the termination of $783 million of grants by the National Institutes of Health. The court clearly treated its earlier ruling as controlling. Justice Gorsuch, in a concurring opinion, was explicit. He wrote: “If the district court’s failure to abide by California were a one-off, perhaps it would not be worth writing to address it. … [T]his is now the third time in a matter of weeks this court has had to intercede in a case ‘squarely controlled’ by one of its precedents. All these interventions should have been unnecessary, but together they underscore a basic tenet of our judicial system: Whatever their own views, judges are duty-bound to respect ‘the hierarchy of the federal court system created by the Constitution and Congress.’”
Justice Gorsuch is thus saying that rulings on the shadow docket must be treated by lower courts as binding precedents. Justice Jackson, in dissent, objected and said: “A half paragraph of reasoning (issued without full briefing or any oral argument) thus suffices here to partially sustain the government’s abrupt cancellation of hundreds of millions of dollars allocated to support life-saving biomedical research.”
There is much that is disturbing in what the court is doing. The process of full briefing and of oral argument is based on the premise that advocacy matters. This is absent in shadow docket cases. Deliberation among the justices matters, but also apparently is absent in cases on the shadow docket. Judicial opinions, with explanation, matter. In the shadow docket cases, sometimes the court issues rulings with no opinion at all, and when there are opinions, they are very brief explanations.
There is a simple solution: If the court wants to rule on the merits of a case and issue a binding precedent, it should schedule this case for briefing and argument. That is exactly what the court did in Trump v. CASA, where it took a matter that had been on its emergency docket and scheduled it for full briefing and then oral argument. It was followed by a lengthy opinion and both concurring and dissenting opinions.
Of course, there may be matters where the court needs to issue an emergency ruling. But none of these cases involved urgency. And in emergency situations, there is much the court can do: issue a ruling and opinion that is not a binding precedent, or have expedited briefing and argument, or issue a ruling followed by a full opinion.
Instead, without explanation or justification, the court has drifted to now treating its emergency docket rulings as binding precedent. This just cannot be reconciled with fundamental aspects of good legal procedures.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).
