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shadow docket
The Supreme Court's Latest Shadow-Docket Ruling Could Help the GOP Win the Midterms
Standing alone, neither the expanded SAVE program nor the citizenship lists may be capable of changing the outcome of the midterms. But they do not stand alone.
Oct 03, 2026
Just when it seemed the Supreme Court might be prepared to stop Donald Trump from sabotaging the midterm elections, the six Republican justices who dominate the court handed the president a potentially far-reaching victory on September 25 with another ruling on its emergency “shadow” docket. The ruling in Department of Homeland Security v. League of Women Voters permits the administration and Republican-led states to use a newly expanded federal database to review state voter lists, overturning a lower-court decision that had concluded the database could not be used for the midterms because it violates federal privacy laws and the Administrative Procedure Act.
The Systematic Alien Verification for Entitlements program was created in 1986 to allow federal, state, and local government agencies to verify the citizenship and immigration status of noncitizens applying for public benefits, relying on records maintained by the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of State. However, in March 2025, Trump promulgated Executive Order 14248 (titled “Preserving and Protecting the Integrity of American Elections”), that revamped the program to permit state and local authorities to verify the citizenship status of registered voters so they could purge noncitizens from the rolls—a purpose the SAVE program was never intended to serve. The executive order also directed the Social Security Administration (SSA) to make its records available to the DHS for that purpose. Two months later, the DHS, acting on its own, launched a modified SAVE program that allows state and local authorities to conduct unlimited bulk searches of multiple individuals at once.
In September 2025, the League of Women Voters, together with its affiliates in Texas, Louisiana, and Virginia, and the Electronic Privacy Information Center sued the federal government, claiming that the expanded SAVE program violated the Social Security Act, the federal Privacy Act, and the Administrative Procedure Act. On June 22 of this year, District Court Judge Sparkle L. Sooknanan, who sits in Washington, DC, blocked the revamped SAVE program from being used for the midterm elections. The Justice Department, led by Solicitor General D. John Sauer, took its case to the US Court of Appeals for the DC Circuit, and, after failing to secure relief there, turned to the Supreme Court’s shadow docket, where the administration has enjoyed great success.
In one Texas county alone, searches conducted under the database returned an astounding error rate of 21%. There is no reason to believe the master citizenship lists will be any more reliable.
The high court granted Sauer’s request with a seven-page unsigned “per curiam” ruling, holding that the plaintiffs’ claims about the expanded database lacked merit, and that “the Federal Government has an obligation to respond to requests from state and local election officials seeking to verify the citizenship of voters.” In their dissent, the court’s three Democrats argued that the use of the database will result in voter disenfranchisement.
On its face, as some commentators have noted, the court’s ruling appears limited in scope because the National Voter Registration Act (NRVA) of 1993 prohibits states from conducting “systematic” purges of registered voters in the 90-day “quiet period” prior to elections. If the terms of the NRVA are faithfully and literally applied, this means that states can utilize the expanded SAVE program to conduct only “individualized” (one at a time) citizenship checks of prospective voters in the weeks remaining before the midterms. Use of the SAVE program is also voluntary, as states are not compelled but only urged to use the system.
The problem is that neither the NRVA nor the Supreme Court’s shadow docket ruling defines what is meant by “systematic” purges, and that individual purges can easily be aggregated to have a mass impact. In a post for Democracy Docket, reporter Yunior Rivas explained the problem this way:
Now, a crucial voter protection [under the NRVA] could hinge on whether the Supreme Court [in subsequent cases that will surely come its way before the midterms] wants to narrow the definition of “systematic” as applied to purges. And there’s reason to fear that it does [ … by allowing states to] run thousands of voters through SAVE and then evade the NVRA’s quiet period by treating each resulting citizenship challenge as an “individualized” inquiry.
Rivas also observed that the Supreme Court’s shadow docket decision does not prevent the Trump administration from preparing master citizenship lists for each state, which GOP-led states could use to purge unlimited numbers of individual voters without even using the SAVE program.
In fact, those citizenship lists are being compiled pursuant to Executive Order 14399, which directs the DHS, SSA, and State Department to create lists of all “confirmed” citizens residing in every state who are entitled to vote. Once again, states are not required by the order to use the lists to purge their voting rolls, but the order stipulates that election officials in states that permit noncitizens to vote will be referred to the DOJ for possible criminal prosecution.
On September 14, the Supreme Court handed Trump a rare shadow-docket defeat, preventing the US Postal Service from interfering with mail-in balloting. But that decision did not address the legality of the citizenship lists. The legality of the lists is currently pending in litigation brought by the Electronic Privacy Information Center and the public-interest groups Protect Democracy and Citizens for Responsibility and Ethics in Washington, but no decision has been rendered.
Meanwhile, the clock is ticking.
According to the DOJ, 27 states, including Texas, Florida, Georgia, Ohio, and Indiana, have agreed to use the expanded SAVE database, which in practice has proven to be plagued by serious mistakes. In one Texas county alone, searches conducted under the database returned an astounding error rate of 21%. There is no reason to believe the master citizenship lists will be any more reliable.
Standing alone, neither the expanded SAVE program nor the citizenship lists may be capable of changing the outcome of the midterms. But they do not stand alone. They are part and parcel of a multifaceted plan to sabotage the elections, engineered by a president with dictatorial aspirations and a core of committed quislings determined to keep him and the MAGA movement in power through the midterms and beyond.
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‘Going Out of Its Way to Enable Trump,’ Supreme Court Has Used Secretive Shadow Docket Like Never Before
"That hugely consequential cases are decided with no transparency," said one civil rights lawyer, "only adds to the court's illegitimacy and further decreases the public's confidence."
Jul 02, 2026
As its conservative majority showed unprecedented deference to President Donald Trump, the US Supreme Court passed what ProPublica described as a "troubling milestone" during the term that ended last October.
For the first time in its modern history, an analysis published Wednesday found, the court decided more cases using its secretive "shadow docket" than using the regular process.
Unlike the so-called "merits docket," in which cases undergo lengthy periods of review, parties file briefs and make oral arguments for their side, and the justices issue extensive signed rulings explaining their reasoning, shadow docket decisions are expedited and offer little mechanism for accountability.
They are often unsigned, with no final vote count or explanation of the court’s decision, and are often issued within hours of legal action being taken, leaving no time for deliberation or public input.
These cases are meant to be reserved for emergency or temporary interventions. But as Trump has attempted to exert unprecedented executive authority that often brazenly pushes legal boundaries, ProPublica found that the court's use of the shadow docket has exploded.
The analysis found that during the last Supreme Court term, the court issued 63 decisions on the shadow docket, compared with just 56 on the merits docket. Analyzing more than two decades of decisions by the high court, they found that the court has never come close to issuing this many secret decisions in any previous term.
This is due largely to the Trump administration's unprecedented petitioning to have cases decided on the shadow docket after elements of the president's agenda were stymied by lower courts.
As ProPublica explained, the court "has repeatedly green-lit policies of his that lower courts have blocked—and has done so with little to no explanation," and often the decisions have been highly consequential and "have thrown lower courts’ processes into turmoil and have sometimes directly contradicted longstanding legal precedent."
On June 23, 2025, after a lower court had ruled that eight men being deported to South Sudan should have due process, the Supreme Court intervened after a request from the administration to stop that order. The men were deported. The majority didn’t issue an opinion justifying its ruling.
Three months later, the Supreme Court voted to allow immigration agents to stop people based on racial or ethnic characteristics while still-ongoing litigation against it proceeded. To justify the decision, Justice Brett Kavanaugh wrote a rare shadow docket opinion that people who were in the country legally would be “free to go after the brief encounter.” These became known as “Kavanaugh stops.” Last year, ProPublica found more than 170 citizens who had been stopped and detained by ICE agents. The more than 50 Americans held even after agents learned of their citizenship were almost all Latino.
And in May, while an election in Louisiana was already underway, the justices allowed the state to immediately redraw its electoral map, removing one of the two majority-Black voting districts. Louisiana can now use that map for the 2026 midterms as part of a nationwide redistricting battle for control of the House of Representatives—an effort touched off by Trump’s call for Republican-led states to create more safe seats for themselves.
An analysis by the legal group Court Accountability in October found that the Supreme Court sided with Trump 90% of the time in the 23 orders included in its analysis of his second administration through October 2025, nearly all of which were issued on the shadow docket.
“The patterns show a court going out of its way to enable Trump,” Stephen Vladeck, a law professor at Georgetown University and a Supreme Court analyst, told ProPublica.
Noting that the American public’s approval of the high court has fallen substantially in recent years, Leslie Proll, a civil rights lawyer and the former director of voting rights at the Leadership Conference on Civil and Human Rights, called the court’s unprecedented secrecy “utterly disgraceful.”
"That hugely consequential cases are decided with no transparency," she said, "only adds to the court's illegitimacy and further decreases the public's confidence."
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