The U.S. Supreme Court’s emergency docket, often referred to as the “shadow docket,” has been under scrutiny for its speed, lack of transparency, and frequent use. While many have examined these aspects, the nature of dissents on this docket has received less attention. A dissent on the emergency docket can vary significantly; it can be a full dissenting opinion or a simple notation indicating a justice’s disagreement with an application. The distinction between these forms of dissents is crucial as they provide varying levels of reasoning for lower courts and litigants to consider. For example, Justice Sonia Sotomayor’s 17-page dissenting opinion provides much more context and rationale than a single line noting a justice’s opposition.
Dissents on the emergency docket are categorized into four types: an authored dissenting opinion, a justice joining a colleague’s opinion, a simple notation of dissent without further explanation, and a bare “would grant/deny” notation. These differences are significant because they often affect how lower courts and legal professionals interpret and cite these decisions. Since the 2000-01 term, 153 substantive emergency applications have received at least one public objection. Of these objections, exactly half were bare notations, which lack detailed reasoning (ScotusBlog).
Individual justices vary in their approach to dissenting. Justice Sonia Sotomayor is the most frequent dissenter with 65 objections, while Justice Clarence Thomas frequently opposes but rarely authors an opinion. Justice Ketanji Brown Jackson, although new to the bench, has demonstrated a more vocal approach compared to Justice Amy Coney Barrett, who has yet to author an emergency docket dissent (Tara Leigh Davis).
Coalition patterns also emerge, with Democratic-appointed justices more frequently offering written dissents as compared to their Republican-appointed counterparts who often express disagreement through notations. This distinction is evident in cases involving judicial power, which often prompt written dissents due to their implications on judicial authority.
In the 2024-25 term, the number of authored dissenting opinions reached a 25-year high, largely due to disputes over executive power and its limits. While the court typically provides limited explanations on the emergency docket, dissenting opinions partly fill the informational gap. Given that federal courts have cited these emergency orders over 6,500 times since 2000, the form of dissent plays a crucial role in shaping judicial understanding and precedent (All Dissents Are Not Created Equal).