The news comes so fast and frustrating (sea shells indictment, anyone?) during the Trump presidency that essential reporting can get lost. It was unfortunate that The New York Times broke the story of damning Supreme Court memos dating to the Obama presidency at the same time that the Atlantic magazine published a lengthy report on the drinking habits of the director of the Federal Bureau of Investigation. Since then, there has been a serious assassination attempt and a call to paint the bottom of the Reflecting Pool outside the Capitol. The national media has to cover the administration clown show (no disrespect to clowns intended), but that can come at a cost.
When The Times published a group of internal Supreme Court communications from 2016, it laid bare what has now been called “a major milestone in the decline of American democracy” and a “bombshell.” Under normal practice, the justices’ confidential papers are not made public for decades. The leak that The Times obtained circumvented the time lag and shed light on the birth of the so-called shadow docket, in which the court has increasingly allowed the Trump administration’s initiatives without explanation. In this case, the documents revealed how Chief Justice John G. Roberts Jr. raced to block President Obama’s Clean Power Plan even while legal action was pending in a different federal court.
The Clean Power Plan would have mandated a gradual phaseout of greenhouse gas-producing electricity generation plants — something sharply opposed by the court’s conservatives. According to the memos, Chief Justice Roberts championed an emergency request by coal-and-oil-producing West Virginia and Texas to block the regulation right away without reviewing the merits of the case. Its provisions would not have taken full effect until 2030. Roberts prevailed despite opposition from within the court that warned that the intervention was unprecedented.
During the second Trump administration, use of the shadow docket has become almost routine. In its first six months, the White House made more shadow docket applications than the Biden administration did in four years — with the vast majority going Trump’s way. The unsigned rulings led to mass firings of civil servants, the defunding of scientific research, and racial profiling in immigration sweeps, quickly and dramatically expanding executive power.
In a 2025 dissent, Justice Elena Kagan observed that the court was upending the Constitution — “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”
When historians look back at the Trump years, this will be among the most significant moments, not how much beer the F.B.I. director did or did not consume.