Leaked Memos Reveal a Fundamental Court Shift

The Supreme Court's "shadow docket" was once a sleepy procedural backwater—used for last-minute technical rulings, often in death penalty cases, and typically without much attention. But according to a New York Times deep dive into internal court memos, that began to change over the course of five days in 2016, when the justices took the unusual step of blocking an Obama-era climate rule before lower courts had finished weighing in. Behind the scenes, the documents show, the move was anything but routine—an early signal that the court was willing to act faster, and more aggressively, than tradition might suggest.

"I recognize that the posture of this stay request is not typical," wrote Chief Justice John Roberts when other justices warned about the unprecedented move. But he argued that the court had to act because the Obama plan to regulate coal-fired plants was "the most expensive regulation ever imposed on the power sector." Samuel Alito wrote that the court's "institutional legitimacy" would be at risk unless it acted. The moment didn't stay isolated. Since then, the court has increasingly turned to the shadow docket to intervene in high-stakes disputes, often issuing brief, unsigned orders that nonetheless carry sweeping consequences. Generally speaking, such orders have often "empowered" President Trump, though they were used to stymie former President Obama.

Roberts emerges in the memos as a key figure in that evolution, which has sparked a fierce debate over the court's role and transparency. Critics argue the shadow docket allows the justices to make consequential decisions without fully explaining themselves. Defenders counter that these rulings are only temporary and that the court needs flexibility to respond quickly in urgent situations. Read the full story by Jodi Kantor and Adam Liptak, which includes key excerpts from the 16 pages of memos.