Supreme Court Justice Samuel Alito once dismissed complaints about the court's emergency docket as a manufactured controversy, but his new book concedes the docket has reshaped how the court works, and he does not expect that to change.
In 2021, Alito used a speech at Notre Dame to push back at critics who call the emergency docket the shadow docket, saying the "catchy and sinister" label painted the justices as a dangerous cabal using improper methods. He insisted the complaints were not serious criticism and that the rising number of emergency orders was not the court's doing.
That speech is reprinted in "So Ordered: An Originalist's View of The Constitution, The Court and Our Country," released Tuesday, alongside a new postscript. Alito wrote that emergency petitions now nearly match the full-briefing, argued caseload the justices handle each term, and told the Associated Press the surge has transformed the court's work.
He again pointed away from the court, arguing that presidents increasingly govern by executive order, drawing lawsuits and "robust" lower-court rulings that send cases racing upward.
Georgetown Law professor Steve Vladeck, the scholar most associated with popularizing the shadow docket term and a critic Alito has singled out, counted the gap as wider than Alito described. In his One First newsletter, Vladeck put last term's totals at 133 full-court emergency rulings against 56 merits rulings, with 21 grants of emergency relief. Five years ago, he wrote, the averages ran closer to 70 rulings and eight to 10 grants. He noted he figures "prominently" in Alito's discussion.
Trump's agenda has run straight through that docket.
The administration's request last week was its 41st, matching its entire first term. In August, the justices divided 5-4 to let the $400 million White House ballroom makeover proceed, after Chief Justice John Roberts first granted a temporary stay and after the Justice Department recast the project as national security infrastructure. Alito was among three dissenters in February when the court ruled against Trump's emergency tariffs.
On the tone coming from the White House, Alito told the AP that harsh criticism of the court's substance is fair, but "rhetoric is a different story."