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Supreme Court

Justice Breyer Says Not to Worry about the Shadow Docket

A retired liberal justice does not credit the shadow docket hysteria, nor does former Judge Michael McConnell

Jonathan H. Adler | 4.27.2026 11:05 AM

Harvard magazine reports on recent comments by retired Supreme Court Justice Stephen Breyer on the "shadow docket." Although Justice Breyer would likely vote with the more liberal justices on many interim orders, he does not seem to share the concerns of Court commentators about how the Court has been handling things. From the story:

"Should we be worried about the Court's reliance on the shadow docket?" West asked Breyer, noting that many audience members had submitted questions about it.

No, was Breyer's short answer. "Every court has what you're saying is a shadow docket, which we call an emergency docket," he said, explaining that throughout most of the Supreme Court's history the docket had been used primarily to issue stays of execution in death penalty cases. "Or sometimes," he added, there would be a "very important case about an election or an election rule, and we might issue the stay."

Tracing the increasing use of the shadow........

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