The US Supreme Court has used the shadow docket, a process to issue emergency orders, incessantly in the last few years. Since the start of Trump’s second term, this expedited process has been used to grant the president more than 20 victories on issues such as deportation and government employee firings. These decisions, although meant to be temporary, are hugely consequential, and can have irreversible impact. The increasing speed at which the judiciary makes decisions is indeed a result of the shifting power systems in the US, but it is also actively perpetuating the expansion of executive power and authoritarianism. 

In the new world order, authoritarian regimes more often take the “stealth” approach as opposed to outwardly glorifying repression and control. They mask themselves behind the rule of law, using the institutions of democracy to consolidate power over time. This makes detecting and proving authoritarian regimes much more difficult. One of the various legal mechanisms of stealth authoritarianism, according to Ozan Varol, is when a party in power compromises the courts. “They rely on judicial review, not as a check on their power, but to consolidate power.” When co-opted by a political party, courts can selectively apply the law, for example, to eliminate opposition from running. The threat is that if electoral preferences change, the authoritarian incumbent has built up a system that allows them to remain in power.

The US Supreme Court is designed to act as a check on executive power, but it is instead functioning to expand that power. Trump appointed 3 conservative justices to the supreme court, resulting in the 6-3 conservative majority we have now. There is less pushback against Trump’s executive orders than there may have been with a court that is ideologically moderate. The current court has fast tracked his policy. The over-use of the shadow docket becomes especially concerning when The Court doesn’t fairly reflect the American people. 

Critics worry that it isn’t possible to issue a solid, unbiased ruling in such a short period. The shadow docket bypasses the typical, time-tested process known as the “merits docket,” in which the court spends months or years getting briefs, hearing arguments, discussing, and drafting before coming to a reasoned decision. Granted, there are other factors that account for why the Supreme Court is no longer moving at its usual slow and deliberate pace. For one, congress’s inability to pass important policy in the last few decades has led to presidents making more executive orders. Lower courts are increasingly blocking these orders, resulting in the Supreme Court stepping in more and more often. However, during these emergency rulings, court members are more likely to incur political biases, whereas the traditional method encourages careful consideration, producing votes across ideological lines. 

Recently, The New York Times published confidential memos from a 2016 shadow docket decision that blocked the Clean Power Plan. The conversations between justices revealed the political biases that can dictate decisions when the docket process is rushed. The Supreme Court has historically been transparent and meticulously careful with their decisions, but the reversal of this precedent is a force that is rapidly deriding our democracy. Varol refers to the act of stacking courts as an example of overt authoritarianism. Other mechanisms of democratic erosion might fly under the radar, but the state of the judiciary is a clear sign that our democracy is under threat.