You Say The Supreme Court Isn’t Partisan? Look in the Shadow

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. 

As the Supreme Court wrapped up its term last June, USA Today ran an op-ed entitled, “Do you think the Supreme Court is partisan? Well you’re wrong.” It was quite serious, apparently a defense of the Supreme Court by a conservative columnist, Dace Potas, distinguishing between the justices’ chosen right-wing philosophy, which does not change direction with a new president’s party, and a partisanship Potas denies, that acts just to empower the MAGA president. 

The assertion that, while the justices may be conservative, they are not out to help Trump, specifically, is, in fact, a common view among a certain strain of opinion writer. The Wall Street Journal editorial board points to the Court’s skepticism of Trump’s tariffs to insist arguments “that the Court is tolerating an Imperial Trump Presidency” are “mistaken.” Conservative columnist Jonah Goldberg argued in 2024 that the Court’s decision that year to rule 9-0 against a group of anti-abortion doctors who were seeking an FDA crackdown on the abortion drug mifepristone was proof that the Court was neither as “partisan” nor as “ideological” as the American public at large. (The Court found that the doctors lacked standing, but not necessarily that they were wrong on the merits.) “The popular partisan narrative for the Supreme Court gives a very narrow view of how the justices’ ideologies actually play out in practice,” wrote Potas in USA Today. “Americans should look to the justices’ own personal tendencies and judicial philosophy to characterize them, rather than simply grouping them by party.” 

It’s a view that is willfully naive, as 2025 made abundantly clear. Yes, on the merits docket, the justices did not rule along partisan lines, 6-3, every single time (though they did quite a bit). Yet it’s not the merits docket where their partisanship shines through. It’s on the emergency docket — often, appropriately, called the shadow docket — where the conservative majority’s partisanship most aggressively asserted itself, allowing Trump to enact his unprecedented attacks on the federal government, the separation of powers, individual rights, and even Supreme Court precedent virtually unimpeded.

Consider a distinction between “ideological” and “partisan.” Much of the time in recent decades, the Court has been “ideological” in the normal sense of the term — a consistent judicial philosophy of questions that stays constant between terms of presidencies of different parties — of late, a Court with a majority of right-wing ideologues consistently doing things like overruling Roe v. Wade, knocking down campaign finance laws, striking down gun laws, and so on. But, if one asked the question, “was the Court partisan?” — meaning it conveniently changed its judicial logic depending on which party was in power, or in other words, working, beyond ideology, to promote (or defeat) a particular political agenda — that was not necessarily so. For example, during the COVID epidemic, the right-wingers did rule against Democrats on some cases, like a federal mask-or-vaccine mandate for large employers, a CDC eviction moratorium, or state epidemic measures in churches. But, the majority of Democrats’ COVID measures did not have trouble before the Court, and the church decisions could be attributed to the justices’ religious liberty ideology. The Court was not particularly trying to hamstring Biden in a partisan way.

Today, much of what the six conservative justices are doing in their rulings on the merits docket is, still, consistent with their various shades of conservative jurisprudence. It is consistent with their previously demonstrated judicial ideology, and need not be labeled as done to favor President Trump. For example, one big ruling of this term will be that the president can fire members of independent commissions. That is not just for Trump. That has long been an ideological goal of the right-wing Federalist Society that picked these justices. Similarly, they are continuing to disassemble the Voting Right Act, but that is another long-time ideological goal. 

But, this Court has, since Trump’s first term, leaned increasingly heavily on the shadow docket. During the second Trump administration, the shadow docket has become the primary means through which the Court acts when district courts have enjoined Trump’s rapid-fire onslaught of executive actions. And the shadow docket is where the very different and unique partisanship emerges.

As those who follow the shadow docket are familiar, dozens of times during 2025, the justices have taken such cases, which get minimal briefing and no oral argument, then issued an unsigned majority opinion — often of a couple of sentences. The vast majority of these rulings allowed the Trump administration to go forward with whatever agenda item it was pursuing. 

The Court’s increasing use of the shadow docket first began to raise eyebrows during the first Trump term. But it was less common then than it was in 2025. Bluntly, the shadow docket is the partisan way the Court promoted the Trump agenda in 2025. While there were decisions in line with ideology, that docket was used in service to Trump far beyond the Court’s past conservative bent. 

Notable uses of the shadow docket in 2025 include allowing many Trump administration funding freezes to stand, from withholding foreign aid to defunding scientific research; many administrative decisions like giving DOGE access to Social Security Administration records and mass firing of civil servants; and xenophobic immigration rulings, from allowing, for now, non citizens to be removed to third countries to termination of Temporary Protective Status for Venezuelans. 

On the merits docket, for example, the Roberts Court has not taken any kind of ideologically notable stance on the question of whether funds appropriated by the legislative branch must be spent by the executive branch. All through the Biden administration, appropriations got spent like clockwork. There has been much discussion of whether the Court would take the ideological stance of finding a presidential impoundment power — that is, a power not to spend these funds. It has not done so to date, and doing so would be a huge break with the past. The absence of an impoundment power has been established law since the Nixon administration, when Congress passed the Impoundment Control Act. Ideologically, the conservatives purport to follow the written text of the Constitution (textualism) and its original meaning (originalism). The appropriations power belongs to Congress in the plain text of the Constitution, and the vesting of the power in Congress goes back to the First Congress in 1791 and its forbears. 

However, without an apparent ideological conviction on the subject, the shadow docket operated in a partisan thrust, with the Court backing up the Trump administration by reversing lower court injunctions that stayed Trump’s freezes on all manner of congressionally approved funding. The conservatives never articulated that presidential impoundment was acceptable; they may not have an ideology on impoundment. They just leashed the lower courts reviewing Trump freezes. 

Similarly, the Roberts Court did not have a consistent ideology against immigrants. It allowed Biden to rescind the prior Trump “remain in Mexico” rule, while it denied a Biden emergency petition to continue the “Parole in Place” policy. Notably, on the “remain in Mexico” ruling, Chief Justice Roberts and Justice Kavanagh joined with the three liberals to take a pro-asylee stance. They upheld the Biden administration position that asylum seekers did not need to be returned to Mexico to await the results of their proceedings.

Indeed, the first Trump administration had to make three different attempts before it could get the Supreme Court to sustain a “Muslim ban” on immigrants. Without getting into the weeds about these different policies, let’s just say it would be quite a stretch to assert the Roberts Court had all that much of an encompassing ideology about immigration before 2025. There was no ideological consistency between the past Court and the 2025 Court on wholesale deprivation of immigrants’ rights.

In contrast, without coming in with such an ideology, the Court’s 2025 shadow docket has seen orders come down with a unique and very partisan style, upholding the administration and becoming a powerful force for Trump’s xenophobia. It stopped lower courts from interfering with termination of Venezuelans’ Temporary Protected Status. It let the Trump administration remove noncitizens to third countries. It allowed immigration stops using racial criteria. The list goes on and on. It is not merely striking that the Court has taken these stances. It is striking that the orders have little in the way of roots in past ideological stances, but are a huge boon to one of Trump’s MAGA onslaughts. 

This is not to ignore that the Trump administration does not always win on the Supreme Court’s shadow docket. It has lost on the Alien Enemies Act, and has lost, for now, on National Guard deployment. But in roughly two dozen shadow docket actions last year, the Court has given Trump vastly more victories than defeats, even putting aside its prior ideological positions, and just looking at partisan actions sustaining MAGA politics. 

What should we make of the overwhelmingly pro-Trump shadow docket, given how free from accountability the Supreme Court is? Doesn’t its 6-3 solid majority render it able to act however it likes? Here are some thoughts on those questions.

First, how the Court acts — and whether it brazenly supports a particular political party or politician — can matter to the Court’s legitimacy as a matter of public opinion. To take one of the most important contexts, imagine that as we approach the November 2026 election, cases arise over the implementation of Trump’s views about vote-by-mail, or any other kind of voting other than at the polls on Election Day — or even voting without proof of citizenship. Trump may have executive orders interfering with the polls; lower federal courts may enjoin these. The high Court will have to reckon with an outraged public opinion and a recalcitrant set of blue states if it uses its shadow docket to support Trump on this type of question. This will not look like ordinary, established Roberts Court ideology. This would be seen as the justices trying to win elections for Trump’s party. 

Second, it can matter to the Court’s hold on the lower judiciary. There is already great tension around such questions as how much precedential weight to give decisions on the shadow docket. In the past, district judges have had to go along with Supreme Court justices being ideological. The district judges accept the system. But a substantial fraction of district and appellate judges is not used to partisan types of intervention, often delivered with little or no explanation. Faced with that, they may evade shadow docket actions not supported by merits opinions. The Supreme Court has a simple numbers problem in controlling a large lower judiciary that deems itself justified to evade and resist. 

Third, it can matter when, hopefully, the House goes Democratic next November. The House has limits in its powers, obviously, but, let us start with hearings on judicial subjects. Although there is no love lost between the 6-3 Court and the Democratic House on ideological questions like abortion, and although Trump has already shown he enjoys occasions for attacking district judges, the House may get more intense if the Court loses legitimacy through partisanship in aid of the Trump administration. Just how intense the hearings get, what propositions get brought to the House floor, will be in proportion to how nakedly the justices flaunt not just their conservative ideology, but embrace partisanship to promote Trump’s MAGA agenda. 

The recent decision against the National Guard going to cities like Chicago is a single data point, and may not be enough to draw conclusions from. But it is possible the justices of the potential center-right — Barrett, Roberts, and Kavanaugh — might, just might, be getting the message, just in time, on the difference between ideology and partisanship.