Professors Funk and Schmidt on Fixing the Supreme Court’s Interim Docket

Over the past 15 years, the Supreme Court has confronted a growing number of its most consequential public law disputes through what is known as the interim, shadow, or emergency docket, where rulings are often issued without formal opinions. In a new paper, Thomas P. Schmidt, associate professor of law, and Kellen R. Funk, Michael E. Patterson Professor of Law, say that the rising number of such rulings and the hasty way such decisions are made lead to charges of arbitrariness and lack of transparency. 

“It is important to have some kind of mechanism to deal with cases on an accelerated basis when the circumstances warrant it,” says Schmidt. “We don’t think the equity docket—as we suggest calling it—is inherently illegitimate. But there’s no question that the court is at a perilous moment for its legitimacy.”

Below, the pair discuss their proposal for renaming—and remodeling—the Supreme Court’s emergency docket, reestablishing its proper place, and restoring historical guidelines for decision-making.

Why do you want to adopt the term “equity docket” to describe these types of SCOTUS rulings?  

Thomas P. Schmidt: We propose a label that describes what’s distinctive about this portion of the court’s business. The idea behind the term “shadow docket” was that it was invisible relative to the merits docket. People weren’t really noticing that the court was doing all of this important stuff in this relatively invisible way. Now, in 2026, that no longer seems like the core problem because the so-called shadow docket is front-page news all of the time.

What the court is actually doing on this docket is weighing the equitable factors in a particular case to try to figure out what to do with a government policy while a case is pending. That resembles the historic role of a court of equity, which is why we argue for the equity docket. But the court’s docket has fallen out of balance. It’s doing too much too fast on the interim/emergency/equity docket, and it’s often not adjudicating those cases in a way that’s faithful to the best traditions of American courts.

What are some of the ways that you believe the court has gone astray with regard to equity docket cases? 

Kellen R. Funk: The court has long emphasized a four-part test for equitable intervention: the likelihood of success on the merits, the risk of irreparable harm, the balance of equities, and the public interest. But currently, it is rare that the court analyzes all four parts or treats each part consistently from one case to the next. 

Our article isn’t trying to be a “gotcha” about judicial discretion but to make the point that in important cases on emergency applications, discretion is part of the job of judging. The “balance of the equities” test calls on judges to articulate how much weight they accord each side’s injuries and how they want to use their discretion to intervene—or not. The way to avoid arbitrariness is not to pretend discretion does not exist or to look for false constraints but to be open and honest about how the court is operating and to strive for a consistent approach that will render discretionary judgments more objective over the long run.

Why has the number of equity docket cases increased? 

Schmidt: The upward trend of equity docket cases started in the Obama administration and has continued into the second Trump administration. Congress has become less active legislatively, and more and more ambitious policies are originating in the White House and being promulgated either by the president or through administrative agencies. These policies quickly land in courts and make their way up to the Supreme Court.

A second reason is that the Supreme Court has shown, again and again, its willingness to get involved in very accelerated circumstances. The court could just say: Our typical function is to review final judgments after litigation is played out in the lower courts. But they don’t feel comfortable doing that. They feel the litigation process can often take several years and an administration is only four years long. If they don’t get involved at an early phase, they may never get involved at all. Then the legality of these very important policies is going to be decided solely by lower courts. So the court has shown itself to be willing to entertain applications, and that has led to more and more applications. 

What role has the assertion of irreparable harm, which you mentioned as one of the tests for equitable intervention, played in that increase? 

Schmidt: The Supreme Court has weakened one of the factors that is an important limit on when courts will traditionally grant equitable relief. “Irreparable harm” is an important gateway requirement: If you want an injunction, you need to show that, in the absence of an injunction, you would be “irreparably harmed.” That’s to prevent courts from exercising their injunctive powers too broadly. On the equity docket, the Supreme Court has adopted a more or less automatic rule that if a government policy is enjoined, the government has been irreparably harmed. On the flip side, the court has also often found that anybody whose constitutional rights are violated has also been irreparably harmed. What this means in practice is that it’s very easy to get onto the equity docket and to get the court to intervene. 

Why does the court assume “irreparable harm” if government action is enjoined?  

Schmidt: It’s a rule of judicial deference dating to the Rehnquist court in the 1970s and 1980s: Government action is presumed constitutional—because we generally give the political branches some leeway to pursue whatever policies they want. The big difference between those Rehnquist-era opinions and today is that these government actions are not legislative, they’re executive. In fact, the nature of the litigation is that the executive branch has done something in contravention of a statute, in excess of its statutory authority, or in violation of the Constitution. The presumption of constitutionality should not have the same bite in that context. 

What changes would you like to see the court make with regard to the equity docket?  

Funk: There’s nothing inherently magical in written opinions, but it would be an improvement for the court to be more consistent in its docket rules. Written opinions, even brief ones, can help the court articulate how it is consistently applying the test it says it is using.

Schmidt: Put some teeth back into the irreparable harm requirement. Don’t shy away from considering and balancing the equities—including the public interest and the government’s unclean hands—because historically, that was an important aspect of what it meant to consider a case in an equitable light. Take into account the old maxim that equity follows the law. That means two things: Develop a system of precedent governing your disposition of cases on the equity docket so that you can assure people that you’re resolving cases in a consistent way, and second, don’t use the equity docket to silently overturn precedents of long standing. That’s not a proper use of this emergency mechanism. 

This interview has been edited and condensed.