CREATORS: The U.S. Supreme Court's Mysterious Shadow Docket

Matthew T. Mangino
CREATORS
September 30, 2025

The U.S. Supreme Court's "Shadow Docket" conjures up this mysterious image of justices surreptitiously moving through the Supreme Court building in the dead of night, making monumental, yet anonymous decisions.

University of Chicago law professor William Baude first coined the phrase "Shadow Docket" in 2015. The name may be modern, but the concept has been around as long as the Supreme Court itself. The term refers to the U.S. Supreme Court's practice of issuing emergency orders and summary decisions outside its regular case docket, typically without oral argument.

Traditionally, the Shadow Docket was rarely used. Like seeking injunctive relief in a trial court, a litigant had to prove that they would suffer irreparable harm if the request was denied.

According to Jack Laskey, writing on EBCO, a litigant wishing to get their case decided via the Shadow Docket applies to any one of the nine justices, who can then forward the case to the rest of the Court for review. If at least five of the justices agree to grant the litigant's request, the case is placed on the Shadow Docket.

There have been 25 emergency applications sent to the court by the Trump administration this year. In each of those cases, a lower court had ruled that the president's actions were unconstitutional.

For example, recently in California, judges ruled that immigration agents could not arrest someone without reasonable suspicion based solely on a person's ethnicity or the language they spoke. President Donald Trump sent an emergency request to the Supreme Court to overrule the decision of the California judges and lift that ban.

In Noem v. Perdomo, the Court allowed immigration agents to consider race, language and work status when deciding whom to stop in Los Angeles.

Cooley Law School Professor Joseline Jean-Louis Hardrick wrote about how the Shadow Docket is impacting fundamental protections previously provided by the Supreme Court. In 1968, the Court created the "reasonable suspicion" standard in Terry v. Ohio. It was meant as a compromise, allowing police to act on less than probable cause while protecting civil liberties.

Justice Brett Kavanaugh, concurring with the majority in Noem, wrote that while ethnicity alone cannot justify a stop, it "can be a relevant factor when considered along with other salient factors." That formulation opens the door for immigration agents to use race, language, and class as part of the suspicion calculus.

Justice Sonia Sotomayor dissented, writing, "We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent."

University of Texas law professor Stephen Vladeck examined the implications of the Shadow Docket in his book, "The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic."

According to NPR's Nina Totenberg, Vladeck pointed to a speech Justice Amy Coney Barrett gave in 2021, in which she assured the audience that the current court "is not composed of partisan hacks" and urged people to "read the opinions." But as Vladeck noted, "What's remarkable about the Shadow Docket is that so often the court is handing down rulings with massive impacts in which there's no opinion to read."

"We may not agree with the specific principles the justices are articulating" in major decisions, Vladeck wrote, but at least we have some sense that these decisions are based on legal principles. In contrast, he argued, "The shadow docket has none of that."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Florida carries out 13th execution of the year

 The 34th Execution of 2025

Victor Tony Jones, 64,convicted of killing a married couple during a robbery in South Florida in 1990 was put to death September 30, 2025 in a record 13th execution this year in the state, reported The Associated Press.

Jones was pronounced dead at 6:13 p.m. following a lethal injection at Florida State Prison near Starke. Jones’ death extended Florida’s record for total executions in a single year, with the state planning to carry out two more executions next month.

The curtain to the viewing room opened right at the scheduled 6:00 p.m. start of the procedure. Asked if he had any last statement, Jone said, “no, sir.” Then the drugs began flowing. His chest began to heave for a few minutes, then slowed and stopped completely.

The warden shook Jones and shouted his name several minutes into the procedure, but there was no response. Jones’ face lost color as he laid motionless, and a medic eventually entered the death chamber and declared him dead minutes later. Officials said the execution was without complications.

“After seeing what I saw tonight, I wish my parents had that opportunity to die so gracefully, close your eyes and just go,” said Irene Fisher, daughter of the victims. “They were violently killed. My father fought for 20 minutes with a stab wound in his heart, and my mother died instantly in the bathroom on a cold floor.”

Jones was a new employee at a Miami business owned by Matilda and Jacob Nestor in December 1990 when he stabbed the woman in the neck and her husband in the chest, court records show. Investigators determined that despite his wounds, Jacob Nestor managed to retreat to an office, unholster a .22 caliber pistol and fire five times, striking Jones once in the forehead.

Police said they found Jones wounded at the scene with the Nestors’ money and personal property in his pockets. Jones was hospitalized and later convicted of two counts of first-degree murder in 1993 and sentenced to death. The jury also found him guilty of armed robbery.

Fisher attended the execution of her parents’ killer with her own two adult daughters and three other family members. She said she had mixed emotions, as she had never watched anyone die before. But she said she was glad it was finally over and that justice had been served.

The Nestors owned a medical supply store in Miami’s Wynwood neighborhood, years before it became an internationally known arts and entertainment district. The building where the business had been located is now a community center.

“My parents would have loved that because they were always helping people in the community,” Fisher said.

Since the U.S. Supreme Court restored the death penalty in 1976, the highest previous annual total of Florida executions was eight in 2014. Florida has executed more people than any other state this year, followed by Texas with five.

Jones filed an appeal with the Florida Supreme Court earlier this month, based on intellectual disability and alleged abuse he suffered as a teen at a since shuttered state-run reform school. The court denied the claims, finding the disability issue had already been litigated and that allegations of abuse were never presented at trial.

Hours before the execution, the U.S. Supreme Court rejected a final appeal without comment.

With Tuesday’s execution, a total of 34 men have undergone court-ordered execution so far this year in the U.S., and at least eight other people are scheduled to be put to death during the rest of 2025.

Barring legal reprieves, two more executions loom next month in Florida under death warrants signed by the Republican Gov. Ron DeSantis.

Samuel Lee Smithers, 72, is scheduled to be executed on Oct. 14. He was convicted of killing two women whose bodies were found in a rural pond in 1996.

Norman Mearle Grim Jr., 65, is scheduled to be put to death Oct. 28. He was convicted of raping and killing his neighbor, whose body was found by a fisherman near the Pensacola Bay Bridge in 1998.

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American Bar Association condemns the use of government power to threaten political opponents

The American Bar Association (ABA) has waded into a politically charged dispute over Justice Department independence, releasing a statement condemning the use of government power to threaten political opponents and officials “who were doing their job.” The move underscored the organization’s increasingly visible advocacy role, reported JURISTnews.

In the statement, the national professional organization for lawyers in the US wrote:

Using government power to threaten people and groups on political grounds is antithetical to our system of justice and the rule of law. Intimidating a political opponent, a lawyer or law enforcement official who was doing their job, an organization that pursued missions not favored by the president, state attorneys general and even members of Congress is unacceptable. Evidence, not ideology, should always be the north star.

Additionally, ABA noted that decisions of prosecutors must be free from political influence to avoid the erosion of public trust in the judicial and political system. The association reiterated that 15 years ago, a policy was passed concerning the political interests of prosecutors and other government lawyers.

Article II, Section 2, Clause 2 of the US Constitution, commonly known as the Appointments Clause, grants the President the authority to “nominate” with the advice of the Senate, “Officers of the United States,” including federal prosecutors. This provision limits undue political influence over the justice system by requiring the Senate’s confirmation role in preventing partisan appointments to the judicial system.

In addition to appointments, however, the threat of utilizing the already-appointed officials is imminent as indicated by the ABA statement. In Berger v. United States, 295 U.S. 78 (1935), the Supreme Court argued that the Attorney General is not a representative of an “ordinary party to a controversy,” but of a “sovereign whose obligation to govern impartially,” and whose prosecution may have earnestness and vigor, but no liberty to strike unfairly.

Earlier this month, former FBI director James Comey was indicted on making false statements to Congress and obstruction of justice. According to Comey, the DOJ is politically attacking him for his stances against President Donald Trump.

The politically charged statement highlighted the ABA’s increasingly visible advocacy role at a time when several Republican-led states are questioning whether the organization should continue overseeing law school accreditation. Texas on Friday became the first state to announce it would end that arrangement, while Florida has cited concerns about the “ABA’s active political engagement” in launching its own review.

The ABA is the nation’s largest voluntary legal network, representing more than 400,000 lawyers. It has served as the sole federally recognized accreditor of American law schools since 1952. Many states have traditionally required graduation from an ABA-accredited law school as a prerequisite for bar admission, making the organization’s approval essential for most law schools. But the ABA serves functions beyond academia as well, including in vocally advocating for the legal profession and advancing the rule of law.

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'Department of War' pushes for first military execution in 60 years

The Pentagon is preparing to ask President Donald Trump to authorize the execution of Nidal Hasan, the former Army major convicted of carrying out the 2009 mass shooting at Fort Hood in Texas, a senior Department of Defense official told The Daily Caller News Foundation.

If approved, it would be the first U.S. military execution in more than six decades. Hasan, a former Army psychiatrist, killed 13 people and wounded 32 others in the attack.

Hasan entered Fort Hood’s Soldier Readiness Center armed with a semi-automatic pistol and opened fire on fellow service members preparing for deployment. 

During his subsequent trial, Hasan admitted to the shooting and claimed it was necessary to protect the "Islamic Empire" from American forces.

The Pentagon had categorized the massacre as an act of "workplace violence," a decision that drew sharp criticism from lawmakers, victims’ families and national security experts. They argued it obscured the ideological and terrorist motivations behind the attack.

In 2013, a military jury convicted Hasan and sentenced him to death. 

He has been held on death row at the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas, ever since. 

After years of appeals, Hasan's final legal challenge was rejected in April 2025, clearing the way for execution.

"I am 100% committed to ensuring the death penalty is carried out for Nidal Hasan," Department of War Secretary Pete Hegseth told Fox News Digital. "This savage terrorist deserves the harshest lawful punishment for his 2009 mass shooting at Fort Hood. The victims and survivors deserve justice without delays."

Hasan is one of just four prisoners facing the death penalty under military jurisdiction.

The Army secretary has already recommended execution, and the Department of War is advancing the request.

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The Trump vengeance tour coming to a politician near you

 According to The New York Times, Donald Trump has never been coy about his intentions. He ran in 2024 on a promise of payback, and declared in a speech at the Justice Department this year his intention to pursue vengeance against the “scum” he says weaponized the criminal justice system against him.

While Mr. Trump and his team acted quickly to purge the Justice Department and the F.B.I. of officials who had roles in prosecuting him and his allies, it has taken a while for the president to exert maximum pressure to bring charges against his highest-profile foes.

In July, William J. Pulte, an obscure but ambitious housing finance official, padded into the Oval Office and pressed doubts in Mr. Trump’s mind about Mr. Siebert’s role in the James investigation. It fueled his growing frustration over the pace of Justice Department inquiries into all of his enemies, including Mr. Comey.

Mr. Pulte argued that Mr. Siebert was slow-walking the James case in order to get confirmed by the Senate for a job in a state with two Democratic senators, according to people briefed on the conversation.

The president’s drive for vengeance was stoked by allies in and outside his government, most notably Mr. Pulte, whose accusations of wrongdoing against a Federal Reserve governor, Lisa Cook, helped instigate Mr. Trump’s move to oust her. Mr. Pulte has often teamed up with Ed Martin, who runs the Justice Department’s “weaponization” task force.

Mr. Pulte, who referred the James mortgage case to the department earlier this year, was not just veering out of his lane. He had jumped the median. Todd Blanche, the former Trump defense lawyer who now runs the day-to-day operations of the Justice Department as the deputy attorney general, made it clear he did not appreciate Mr. Pulte telling the boss what the department should do, according to officials briefed on their interactions and familiar with Mr. Blanche’s thinking.

Mr. Blanche told people in his orbit that Mr. Pulte was hyping up the president’s expectations, even though the legal threshold for bringing charges against Ms. James, proving criminal intent, had not been met.

Mr. Pulte declined to comment. Mr. Blanche did not respond to a request for comment.

Mr. Blanche is a Trump loyalist. He left a partnership at a top New York law firm when colleagues refused to let him take on Mr. Trump as a private client, and he has promoted the view that Mr. Trump has nearly unlimited authority under Article II of the Constitution. He strongly believes law enforcement was weaponized against the president.

Yet unlike Mr. Martin and Mr. Pulte, Mr. Blanche is also a seasoned former federal prosecutor with a firm grasp of evidentiary rules and an appreciation of work done by career department investigators that is not shared by the president, or many others in the West Wing.

He passed along their unwelcome findings in the James investigation to the White House, knowing it would not be happily received, according to officials.

He knew that Mr. Trump viewed him as his personal lawyer. He also knew his client wanted revenge, not a legal lecture, and understood that it was futile to protest too much.

By late summer, bigger political forces were at work, namely the backlash over his department’s failure to release the full tranche of investigative files into the disgraced financier Jeffrey Epstein. In what was seen as an effort to divert public attention, many pro-Trump influencers — egged on by government officials like Kash Patel, the F.B.I. director — turned up the volume on their demands about prosecuting the president’s enemies.

The calls for vengeance reached such a frenzy that Mr. Trump himself eventually issued a chilling yet all but undeliverable threat: He claimed that former President Barack Obama had committed treason and should face “consequences.”

Enter Mr. Martin, a far-right activist from Missouri, who had been given an ill-defined but potentially powerful role at the department to pursue Trump enemies after Senate Republicans quashed his nomination to serve as U.S. attorney for the District of Columbia.

He had a direct line to the White House, at times bypassing Mr. Blanche, and had a mandate to work directly with U.S. attorneys to bring cases.

By mid-August, he was focused on indicting Ms. James over questions Mr. Pulte had raised about a mortgage application for a house she had purchased in Virginia. One of the spurs driving him: His special agreement to work with Mr. Siebert’s office on the James case expires at the end of this month.

Prosecutors working under Mr. Siebert, however, determined that there was insufficient evidence to bring charges.

But Mr. Trump was growing increasingly fixated on the fact that the Justice Department had not yet indicted a single person he had targeted, according to multiple people in his orbit, and was receptive to the agitation of advisers. Mr. Pulte soon had frequent access to Mr. Trump by phone, and efforts by some Trump advisers to stall Mr. Siebert’s dismissal were failing.

Sergio Gor, the director of the presidential personnel office, moved to dismiss Mr. Siebert after Mr. Trump said multiple times that he wanted him fired, according to two people with knowledge of the events. And Boris Epshteyn, a longtime Trump legal adviser, spoke with Ms. Halligan, who was serving as a lawyer in the White House, about stepping in to lead the U.S. attorney’s office. The president quickly settled on her for the role, according to a person familiar with the situation.

Senior Justice Department officials, meanwhile, suggested that the Comey investigation was moving forward, and did not rule out the possibility of a prosecution.

Another deadline accelerated the pace of that investigation: the five-year statute of limitations on potential crimes emanating from Mr. Comey’s Senate testimony, which would have expired on Tuesday.

In early September, prosecutors from Mr. Siebert’s office subpoenaed Daniel C. Richman, a Columbia law professor and close adviser to Mr. Comey, in connection with an investigation into whether the former F.B.I. director lied about authorizing Mr. Richman to leak information.

Mr. Richman’s statements to prosecutors were not helpful in their efforts to build a case, according to people familiar with the matter. And Mr. Siebert began expressing serious doubts about the case, which quickly made their way up the chain of command.

By mid-September, Mr. Trump was determined to rid himself of Mr. Siebert, a 15-year veteran of the office. Ms. Bondi and Mr. Blanche, who had worked closely with Mr. Siebert on immigration, drug and gang cases, pushed back.

The president was unswayed. On Friday, Sept. 19, he told reporters he wanted Mr. Siebert to leave. The prosecutor, who had hoped to find another job in the department, knew that time was up and resigned, according to officials in his office who requested anonymity to avoid retribution.

The next morning, shellshocked staff members in the U.S. attorney’s office awakened to find an email in their inboxes from Maggie Cleary, a veteran state prosecutor, saying she was their new boss.

At 6:44 p.m. on Saturday, Mr. Trump dashed off a rambling but pointed social media message to Ms. Bondi demanding action. It landed with a boom.

It read: “Pam: I have reviewed over 30 statements and posts saying that, essentially, ‘same old story as last time, all talk, no action.’ Nothing is being done. What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done.’”

His coda erased any questions about his intentions.

“JUSTICE MUST BE SERVED, NOW!!!” he wrote. Soon after, Comey was indicted by a grand jury.

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America's alarming democratic slide outpaces India and Turkey

Edward Luce writing in the Financial Times: 

It has been widely observed that the speed of America’s democratic slide surpasses that of other “elective autocracies” such as Narendra Modi’s India and Recep Tayyip Erdoğan’s Turkey. But that understates Trump’s impatience. Others have shifted to authoritarianism with relatively fast-growing economies, which makes it easier to sustain public support. Trump’s trade war and his “big beautiful [budget] bill” will rob most Americans of income growth. The idea that the disaffected middle will therefore clip Trump’s wings in next year’s midterm elections is quixotic. Having silenced most institutional dissent within his first nine months, what could Trump accomplish in the next 14? 

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Texas executes baby killer, the second execution of the day

 The 33rd Execution of 2025

Texas death row inmate Blaine Milam was executed on September 25, 2025 for the 2008 killing of his then-fiancée’s 13-month-old daughter after his two previous execution dates were delayed, reported the Texas Tribune.

In 2008, Milam and the girl’s mother, Jesseca Carson, called police to their home near Tatum, where authorities found 13-month-old Amora Carson dead, with human bite marks on her body and signs of physical and sexual assault, according to court documents. The two initially gave police different reasons for the toddler’s death, including that they had left the home and found her injured, that she had eaten insulation and later that they had performed an exorcism on the child.

Milam was executed by lethal injection and pronounced dead at 6:40 p.m., according to the Texas Department of Criminal Justice. In his final statement, the 35-year-old thanked those who supported him while he was on death row and the TDCJ chaplains for helping him find religion.

"If any of you would like to see me again, I implore all of you no matter who you are to accept Jesus Christ as your Lord and Savior and we will meet again," Milam said.

Milam’s appeals in the years since his conviction largely focused on his potential exemption from the death penalty due to intellectual disability and since-discredited bite-mark science used during his trial. Executing intellectually disabled inmates is unconstitutional, and the discreditation of bite-mark science has led to at least one overturned conviction in Texas under the state’s “junk science” law.

Milam received two stays on his execution in 2019 and 2021 to have appeals heard, but all eventually failed as he was ruled mentally fit for execution. The Texas Board of Pardons and Paroles unanimously declined to grant Milam clemency on Tuesday.

The U.S. Supreme Court denied Milam's application for a stay of execution on Thursday. The application claimed “demonstrably unreliable and prejudicial forensic evidence” was used because prosecutors could not justify a motive for Milam to have killed the toddler, as well as new understanding of bite-mark science and updates to DNA testimony.

Milam's death marks the fifth execution in Texas this year, the same number of executions as 2024. In March, David Wood’s execution was halted two days before he was scheduled to be put to death. The Texas Criminal Court of Appeals granted him a stay, and subsequently remanded Wood’s case back to trial court, where it awaits further action.

 remainder of the year is that of Robert Roberson, whose innocence in the death of his 2-year-old daughter, Nikki, has long been maintained not only by him but by a number of state lawmakers. On Wednesday, Roberson’s lawyer said the 58-year-old inmate would not seek clemency, but rather focus on obtaining a new trial.

In August, Roberson filed a new appeal that provided new evidence the petition claimed was only made available because of intervention by Rep. Lacey Hull, R-Houston. The appeal alleges that the Anderson County Judiciary acted unconstitutionally multiple times in the opening days of Roberson’s case, including improperly informing the hospital caring for Nikki that her grandparents had the right to remove her from life support.

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