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merit systems protection board
How the Right-Wing Supreme Court Uses the Shadow Docket to Boost Trump’s Agenda
Although the Supreme Court has a long history of entertaining emergency appeals, emergency requests in high-profile cases proliferated during Trump’s first term and continue in his second.
Jun 04, 2025
In an unsigned two-page decision (Trump v. Wilcox) released on May 22, the U.S. Supreme Court upheld the Trump administration’s move to fire members of the National Labor Relations Board and the Merit Systems Protection Board without cause and in the middle of their designated terms. The decision reversed two separate judgments issued by two different D.C. District Court judges that had blocked the firings as unconstitutional.
The Supreme Court’s ruling was issued on an expedited basis as part of a rapidly expanding and highly controversial set of truncated decisions known as the “shadow docket,” a term coined by University of Chicago professor William Baude in a 2015 law review article to describe emergency appeals that come before the court outside of its standard “merits” docket and that are typically resolved without complete briefing, oral arguments, or detailed opinions. Although shadow-docket rulings are frequently used to lift, or “stay,” lower-court injunctions while further litigation continues, they often have the same practical effect as final decisions.
The two officials involved in the Wilcox case, Gwynne Wilcox of the NLRB and Cathy Harris of the MSPB, were nominated to their positions by President Joe Biden and were confirmed by the Senate. Before their dismissals, they were set to serve fixed terms, with Wilcox’s tenure expiring in 2028 and Harris’ in 2029.
Kagan is not alone in her critique that the shadow docket undermines precedent and lacks transparency.
The NLRB’s five-member governing board is charged with enforcing U.S. labor law and collective bargaining, and adjudicating alleged unfair labor practices. The MSPB has a three-member board and adjudicates federal employee challenges to adverse employment actions. Both agencies were established by Congress to operate as independent, nonpartisan overseers free from presidential interference.
President Donald Trump has long railed against agency independence. In a 2019 speech at Turning Point USA’s Teen Action Summit, he declared, “I have an Article 2, where I have the right to do whatever I want as president,” referring to the second article of the Constitution and the “unitary executive” theory, which contends that all executive power is concentrated in the president. Trump is also a proponent of the goal of “deconstructing the administrative state,” a phrase popularized by Steve Bannon and more recently promoted by Project 2025.
Sensing an opportunity to strike, Trump fired Wilcox, a career labor attorney, on January 27, a week after his second inauguration. Harris was sent packing a month later. The lower-court orders mandating their reinstatements were issued in March. But on April 9, Trump’s solicitor general and former criminal defense attorney D. John Sauer requested the Supreme Court to intervene and put the district-court judgments on hold, allowing the dismissals to take effect while returning the cases to the district courts and the Court of Appeals for additional hearings, a process that could easily take more than a year.
In his petition to the Supreme Court, Sauer implored the justices to disregard the court’s 1935 precedent decision in Humphrey’s Executor v. United States, which held that Congress has the constitutional power to enact laws limiting the president’s authority to fire executive officers of independent agencies that exercise quasi-legislative or quasi-judicial functions. Sauer asked the justices to put the lower-court reinstatement orders on hold or, alternatively, issue a final decision on the merits, endorsing the administration’s actions.
Although the firings of Wilcox and Harris clearly ran afoul of Humphrey’s, the Supreme Court granted a stay, and both women were sacked. Just as shocking, the court did so without hearing oral arguments, and without citing Humphrey’s a single time in its decision.
The three Democratic-appointees on the court dissented. Writing for herself and justices Sonia Sotomayor and Ketanji Brown Jackson, Justice Elena Kagan blasted her Republican colleagues for their bad faith and bias in favor of the president. “For 90 years,” she charged, “Humphrey’s Executor v. United States… has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”
Quoting Alexander Hamilton, she continued, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” Without mentioning the shadow docket by name, she castigated the majority for rushing to judgment, “unrestrained by the rules of briefing and argument—and the passage of time—needed to discipline our decision-making.”
Although the Supreme Court has a long history of entertaining emergency appeals—such as last-minute requests for stays of execution in death penalty cases—emergency requests in high-profile cases proliferated during Trump’s first term, earning the shadow-docket sobriquet. According to Georgetown University law professor and shadow-docket scholar Steve Vladeck, the first Trump administration sought emergency relief 41 times, with the Supreme Court granting relief in 28 of those cases. By comparison, the George W. Bush and Barack Obama administrations filed a combined total of eight emergency relief requests over a 16-year period.
In December 2017, the Supreme Court issued a shadow-docket ruling allowing the third and final version of Trump’s racist Muslim travel ban to move forward pending further appeals. The court ultimately approved the ban in a 2018 merits decision. Later in Trump’s first go-round, the court used the shadow docket to uphold Trump’s executive actions calling for the diversion of federal funds to construct the southern border wall, prohibiting transgender people from openly serving in the military, and restricting the ability of Central American refugees to seek political asylum.
During Biden’s presidency, the shadow docket shifted to emergency requests filed by red state governments and private parties, but the court maintained its rightward bias. Among other shadow-docket decisions, the court ended Biden’s Covid-19 eviction moratorium; permitted the new six-week Texas abortion ban to take effect (it would later approve the ban in a final decision that overturned Roe v. Wade); and reinstated a first-Trump-term policy that made it easier for companies to pursue projects that pollute U.S. waters.
Kagan is not alone in her critique that the shadow docket undermines precedent and lacks transparency. At times the criticism has become heated. In September 2021, Atlantic staff writer Adam Serwer triggered an open feud with Justice Samuel Alito, penning a column that accused the court’s right-wing majority of publishing its ruling on Texas’ abortion law in the middle of the night to minimize public outcry. In response, Alito excoriated the media during an hour-long live-streamed speech delivered at Notre Dame University for portraying the court’s majority as “a dangerous cabal that resorts to sneaky and improper methods to get its ways,” and for feeding “unprecedented efforts to intimidate the court or damage it as an independent institution.”
Fortunately, not every shadow-docket order has leaned in the direction of Trump and the MAGA movement. One notable exception was the court’s May 16 ruling that extended an earlier ban on the deportation of undocumented Venezuelan men in immigration custody in Texas under the Alien Enemies Act of 1798. But even that decision ended with a note of encouragement for Trump, advising that “The Government may remove the [men]… under other lawful authorities.” There was also an impassioned 14-page dissent written by Alito and joined by Justice Clarence Thomas.
On May 30, the court issued another pro-Trump shadow-docket order, allowing the Trump administration to revoke the temporary legal status of more than 500,000 immigrants from Cuba, Haiti, Nicaragua, and Venezuela that had been granted by the Biden administration. And in the coming weeks and months, the court can be expected to return to the shadow docket again in cases involving the deportation of undocumented migrants to South Sudan, the operations of the Department of Government Efficiency (DOGE), and possibly the legality of Trump’s tariffs.
Given the court’s overall jurisprudence, there is scant reason to be optimistic that it will openly repudiate or substantially limit the president’s authority in these or other cases critical to the nation’s future. As Elizabeth Wydra, president of the liberal Constitutional Accountability Center, told Reuters in a 2021 interview, “What we are seeing are the consequences of a deeply conservative court, with the added travesties of the shadow docket.”
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'Legislating From the Bench,' Supreme Court Greenlights Trump Firing of Labor Regulators
Justice Elena Kagan wrote in her dissent that the president believes the 90-year precedent "should be either overruled or confined... And he has chosen to act on that belief—really, to take the law into his own hands."
May 22, 2025
In a decision that alarmed legal experts, the U.S. Supreme Court on Thursday blocked the reinstatement of two labor regulators fired by President Donald Trump in apparent violation of federal law intended to prevent such ousters for political reasons.
The Trump administration asked the high court—which has a right-wing supermajority—to block orders from the District Court for the District of Columbia against the president's removal of Merit Systems Protection Board (MSPB) Member Cathy Harris and National Labor Relations Board (NLRB) Member Gwynne Wilcox.
An unsigned two-page opinion—from which the three liberals dissented—provides the Trump administration that relief, but the majority declined to take up the cases more fully, meaning they will play out U.S. Court of Appeals for the D.C. Circuit. The Hillnoted that the move "leaves both agencies without a quorum required to conduct certain business in the meantime."
In her fiery dissent, Justice Elena Kagan wrote that "for 90 years, Humphrey's Executor v. United States... has stood as a precedent of this court. And not just any precedent. Humphrey's undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control."
While the MSPB and NLRB are the focus of this case, "there are many others," she continued. "The current president believes that Humphrey's should be either overruled or confined... And he has chosen to act on that belief—really, to take the law into his own hands."
"Our Humphrey's decision remains good law, and it forecloses both the president's firings and the court's decision to award emergency relief," Kagan added. "Our emergency docket, while fit for some things, should not be used to overrule or revise existing law."
Big, bad legal news from "the shadow docket." 6-3 overturning the stay in Wilcox, the NLRB case. Less than 2 pages of assertions that have been proven historically incorrect. A preview of expanding presidential power and allowing the Trump removals: www.supremecourt.gov/opinions/24p...
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— Jed H. Shugerman (@jedshug.bsky.social) May 22, 2025 at 5:52 PM
Slate's Mark Joseph Stern similarly stressed the significance of Thursday's development on social media, writing that "the Supreme Court just effectively overruled 90 years of precedent on the shadow docket, greenlighting Trump's firing of multimember agency leaders while their cases are pending—despite Congress' effort to protect them against removal. A huge decision."
"The Supreme Court goes out of its way to say that its order today does NOT allow Trump to remove members of the Federal Reserve because it is 'uniquely structured' and has a 'distinct history tradition,'" he noted. "I do not think those distinctions hold water."
The right-wing justices' opinion states that "Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve's Board of Governors or other members of the Federal Open Market Committee."
"We disagree," the court's majority said. "The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States."
Multiple other court watchers echoed Stern's take on social media.
They’re not only overturning precedent on the shadow docket, but ~deciding~ other cases in a non-binding (dicta) way to give cover for these actions. Today, this unnamed group of conservative justices, not even claiming this is “per curiam,” say that the Federal Reserve is different. Sure.
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— Chris Geidner (@chrisgeidner.bsky.social) May 22, 2025 at 5:12 PM
"I don't mean to be a caricature, but this just isn't law. The Supreme Court is always making policy. But this is beyond," said Noah Rosenblum, a New York University associate law professor law, summarizing the decision. "'This dicta in an emergency order will reassure the markets but just, uh, trust us on the law here, OK, no we're not overruling Humphrey's yet, and when we do we'll spare the Fed.'"
Christine Kexel Chabot, a Marquette University associate law professor law, said: "The court is legislating from the bench: It has eliminated removal restrictions it finds unimportant while keeping those it finds too consequential to kill (the Fed). Article II provides an undifferentiated grant of 'the executive power,' not one that applies to the NLRB and excepts the Fed."
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Rebalancing Checks and Balances: How to Curb Executive Abuse
President Trump has conclusively demonstrated that the executive branch cannot be trusted to police itself in following the law. Congress must act to prevent future overreach.
Apr 25, 2025
In his second term, U.S. President Donald Trump has moved aggressively to expand the authority of the executive branch, thereby upending our traditional system of checks and balances among the three branches of government. Reforming this system while he still holds office will be impossible, but he will eventually move on, and Congress should be planning now for changes to the system of shared governance to limit outsize executive authority and prevent future autocratic abuses.
Although President Trump has pushed the envelope further than most could have imagined possible, his abuse of power is reminiscent of the Nixon administration. After the Watergate scandal and the resignation of President Richard Nixon, Congress took steps, such as the Anti-Impoundment Act, to curb presidential excesses. Following the second Trump administration, an even more fundamental restructuring may be in order.
One thrust of Trump’s second term has been a concerted effort to sideline the legal referees charged with checking abuses. Nearly a score of inspectors generals charged with addressing fraud and abuse have been summarily dismissed without cause. The Office of Government Ethics has been decapitated. The head of the U.S. Office of Special Counsel charged with enforcement of civil service laws, such as whistleblower protection, has been removed.
America did not intend to elect a dictator.
The net result is that violations of laws and ethics go unchecked because independent oversight has been neutralized. To prevent the recurrence of future lawless regimes, Congress should reinstitute some of the checks Mr. Trump has shredded but in a way that insulates them from unilateral executive reversal. Congress needs to strengthen the institutional guardrails against executive violations of ethical standards and for protection of federal employees from illegal actions and enforceable standards for scientific integrity.
One step would be a statute relocating inspectors general (IGs) within the legislative branch. IGs do not perform an inherently executive function as they lack authority to implement their recommendations. Congress should appoint fixed-term IGs and team them with the Government Accountability Office (GAO), another legislative body, to keep this strengthened watchdog function beyond executive obstruction.
In this restructuring, the independent IGs could also conduct scientific integrity reviews to resolve challenges to the accuracy of scientific and technical agency information. This would put control of scientific and technical data and analyses beyond the unilateral control of the very bureaucracies responsible for creating them and thereby prevent them from peddling disinformation. Moreover, uniform procedures would facilitate the use of expert scientists from other agencies, universities, and other institutions to serve as review panels.
Similarly, institutions charged with enforcing civil service protections, such as the Office of Special Counsel and the Office of Government Ethics, should be moved into the legislative branch, as well, to prevent them from executive nullification.
Most fundamentally, the executive should not be able to control the judges who decide on disputes the executive branch has with its employees, contractors, and others. Basic fairness requires that these referees be impartial and not under the direct control of one party in the disagreement.
These referee positions are also not inherently executive in nature. For example, under the Competition in Contracting Act of 1984, Congress designated its GAO to serve as an independent and impartial forum for the resolution of disputes concerning the awards of federal contracts. Similarly, investigations into and reviews of employment abuses and related disputes could be handled by statutorily relocated Offices of Special Counsel and Government Ethics.
Significantly, one of the more insidious recent Trump initiatives is asserting his authority to summarily remove administrative law judges (ALJs) who preside over hearings regarding administrative or legal disputes between federal agencies and affected parties. The prospect of removal at will undoubtedly pressures ALJs to alter their decisions to favor the executive agencies.
Mr. Trump is also attempting (once again) to sideline the Merit Systems Protection Board (MSPB), the civil service court which hears legal disputes about the illegal termination or treatment of federal employees. During his first term, President Trump shuttered MSPB by refusing to appoint any persons to fill MSPB vacancies. The three-member MSPB soon lost a quorum to decided cases and entered the Biden administration with a backlog of undecided appeals of more than 3,700 cases.
In his current term, Trump is trying the same approach, seeking to remove one of the two remaining MSPB members midway in her five-year term. As a result, the MSPB has once again been shuttered and may not reopen for years,
To enforce the basic rule of law, Congress should move the cadres of administrative law judges and the MSPB to the judicial branch so that the basic fairness of these decision-makers is safeguarded and they are shielded from further executive interference.
While President Trump may claim that he is implementing the will of the public, a recent Wall Street Journal poll found broad bipartisan support for limiting Trump’s unilateral executive authority. America did not intend to elect a dictator.
Yet, the principal takeaway from events of the past few months is that President Trump has conclusively demonstrated that the executive branch cannot be trusted to police itself in following the law. To prevent future presidents from assuming the same authoritarian posture as Trump, Congress must act decisively to fundamentally rebalance our system of checks and balances.
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