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national labor relations 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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'Technofascism': Whistleblower Says DOGE Goons May Have Taken Private Labor Data
"If the plundering of Americans' data wasn't concerning enough, the targeted, physical threats and surveillance... takes this to another level," said the whistleblower's attorney.
Apr 15, 2025
Despite finding a letter with "threatening language, sensitive personal information, and overhead pictures of him walking his dog" taped to his door, a technology expert at a federal labor agency has become a whistleblower, urging U.S. officials to investigate data practices by President Donald Trump and billionaire Elon Musk's so-called Department of Government Efficiency.
NPR on Tuesday published a lengthy report about whistleblower Daniel Berulis' submission to Congress and the U.S. Office of Special Counsel sounding the alarm over DOGE employees' recent activities at the National Labor Relations Board (NLRB)—which the president also has tried to effectively shut down, leading to court battles.
While DOGE didn't respond to NPR's request for comment, Tim Bearese, the NLRB's acting press secretary, claimed that the Musk-led entity had not requested access to the agency's system, and the NLRB had not granted it. He also said the agency investigated after Berulis raised concerns but "determined that no breach of agency systems occurred."
"As an agency protecting employee rights, the NLRB respects its employee's right to bring whistleblower claims to Congress and the Office of Special Counsel, and the agency looks forward to working with those entities to resolve the complaints," he added.
Those who spoke with NPR struck a much different tone. The reporting features interviews with Bearese, his attorney—Andrew Bakaj of Whistleblower Aid—and dozens of other experts in tech, law enforcement, the labor movement, and government. It adds to mounting worries about what DOGE is doing across various agencies under the reign of the richest man on Earth.
"I can't attest to what their end goal was or what they're doing with the data," Berulis—who found evidence of up to around 10 gigabytes of data, or the equivalent of a full stack of encyclopedias, leaving the NLRB system—told NPR. "But I can tell you that the bits of the puzzle that I can quantify are scary... This is a very bad picture we're looking at."
There's always been reason to believe DOGE was hacking govt systems. Now a whistleblower has substantiated it at NLRB, precisely the kind of data compromise labor unions worried about when they sued re DOL.
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— emptywheel ( @emptywheel.bsky.social) April 15, 2025 at 6:26 AM
"The amount of data that was taken is the equivalent to a section of the New York Public Library, and the amount of people it could impact is in the hundreds of millions," Berulis noted in a Tuesday statement from Whistleblower Aid. "Our information systems appear to have been assaulted, and someone with the capacity and mandate to investigate needs to do so."
According to NPR, labor law experts "fear that if the data gets out, it could be abused, including by private companies with cases before the agency that might get insights into damaging testimony, union leadership, legal strategies and internal data on competitors—Musk's SpaceX among them. It could also intimidate whistleblowers who might speak up about unfair labor practices, and it could sow distrust in the NLRB's independence."
Russ Handorf, who spent a decade in cybersecurity roles at the Federal Bureau of Investigation, reviewed Berulis' records and told NPR that "all of this is alarming" and "if this was a publicly traded company, I would have to report this [breach] to the Securities and Exchange Commission."
Sharon Block, a former NLRB board member and now executive director of Harvard Law School's Center for Labor and a Just Economy, said that "there is nothing that I can see about what DOGE is doing that follows any of the standard procedures for how you do an audit that has integrity and that's meaningful and will actually produce results that serve the normal auditing function, which is to look for fraud, waste, and abuse."
"The mismatch between what they're doing and the established, professional way to do what they say they're doing... that just kind of gives away the store, that they are not actually about finding more efficient ways for the government to operate," she told NPR.
It's not just DOGE affiliates, including Musk, who may have access to the data taken from federal agencies, including the NLRB. NPR reported that "if the data isn't properly protected after it leaves the agency or if DOGE left a digital door open to the agency itself, data could also be exposed to potential sale or theft by criminals or foreign adversaries."
In Whistleblower Aid's statement, Bakaj said that "what is particularly alarming is that in addition to private data being exfiltrated out of NLRB systems—and within minutes of DOGE personnel creating service/user accounts in NLRB systems—someone or something within Russia appeared to attempt to login using all of the correct credentials (e.g. usernames/passwords) on several occasions. This near real-time unlimited access by Russian actors heightens concerns to a level not previously seen and could have destroyed the agency's entire infrastructure in a matter of minutes."
"If the compromise of American's data wasn't concerning enough, the targeted, physical threats and surveillance of my client takes this to another level," he added. "It is time for Congress to act and investigate to keep our democracy from slipping away, something that could take generations to repair."
While NPR readers called the report "sickening" and shared warnings of "technofascism," there is also some optimism in this story: Berulis hopes that he not only prompts a probe but also provides a roadmap for other government employees to come forward.
"I believe with all my heart that this goes far beyond just case data," the whistleblower said. "I know there are [people] at other agencies who have seen similar behavior. I firmly believe that this is happening maybe even to a greater extent at other agencies."
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