The Supreme Court was once the guardian of reasoned justice — a deliberative institution where arguments were heard, opinions were written, and the public could see the logic behind the law. But that vision of the Court is fading fast. In its place stands a majority that increasingly prefers to rule from the shadows, using a secretive mechanism known as the shadow docket to impose sweeping policy decisions without explanation or accountability.

The “shadow docket” sounds mysterious because it is. It refers to the Court’s use of emergency orders — often unsigned, unexplained, and issued in the dead of night — that bypass the normal judicial process. No hearings. No briefs. No transparency. Yet these shadow rulings have decided some of the most consequential issues of our time: immigration, voting rights, reproductive freedom, and public health.

And the justices most eager to use this power sit on theCourt’s conservative wing.

Under Chief Justice John Roberts and his Trump-appointed colleagues — Gorsuch, Kavanaugh, and Barrett — the shadow docket has become a tool for ideological activism masquerading as judicial restraint. Time and again, the conservative majority has used it to quietly deliver victories for right-wing causes while avoiding the public scrutiny that comes with full opinions.

Consider how the Court let Texas’s infamous abortion law, SB 8, take effect in 2021. Without a single oral argument or written justification, the Court’s conservative bloc allowed a law that effectively banned abortions after six weeks to stand. Women’s rights were stripped away overnight — not through a landmark ruling, but through a midnight order.

Or look at voting rights. The shadow docket has been used to reinstate gerrymandered maps and restrictive election laws, often just before an election. Each time, the Court hides behind procedural language about “emergency relief,” but the effect is unmistakable: less access to the ballot for communities of color and more entrenchment for Republican-controlled legislatures.

And while conservatives decry “unelected judges” when liberal rulings displease them, they have no problem using unelected justices to reshape American life from the shadows. This is not judicial humility — it’s power politics cloaked in Latin.

The danger of the shadow docket is not only that it produces bad rulings, but that it erodes public trust in the Court itself. When the majority uses unsigned, unexplained orders to make major legal changes, it sends a clear message: the Court’s power is absolute, and the public has no right to question it. That’s not the rule of law. That’s judicial supremacy.

Democracy cannot function when the most powerful court in the country operates like a political backroom. If the conservative justices believe their decisions are justified, they should have the courage to explain them. Hiding behind the shadow docket betrays both the spirit of the Constitution and the trust of the people.

The Supreme Court’s authority depends on legitimacy — on the belief that its rulings flow from law, not ideology. But every time the conservative majority governs from the shadows, that legitimacy fades a little more. The justices may win their battles for now, but in the long run, they are burning down the very credibility that gives their power meaning.

It’s time to drag the Court back into the light.

T. Michael Smith

wwwtmichaelsmith.com

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