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Journalist Nathan Stone and Producer Josh Carmody invite you to sit down for deep dives on the rapid changes happening in Trump’s new America.
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The Supreme Court reversed an order by a federal judge stopping the Trump administration from cutting over 1,700 medical research grants. The grants were targeted by the administration due to their alleged focus on newly forbidden and disfavored topics, such as DEI, climate change, and transgender issues. The ruling was issued through the court's emergency docket, often referred to as the shadow docket. These hearings are a break from the court's normal procedures.
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and are being used more and more frequently to remove obstacles to President Trump's agenda. Welcome to the politics of New America. On the show today, we look at the Supreme Court's shadow docket and how it's been supporting conservative lawmakers for years. We'll also look at the fallout of the court's removal of the protections for medical research grant funding and what it means for American healthcare. I'm Nathan Stone, coming to you solo tonight.
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And that solo recording is brought to you by my cluster headaches, which have stopped me from getting together with our producer Josh. And so you'll be without his wonderful witticisms today. It's just, unfortunately, my dry commentary. I hope we can all get through it together. ah We'll try and add in twice as many movie references for our next episode.
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I've been wanting to talk about the Shadow Docket for a while. It's one of those interesting American quirks for the Supreme Court where it all makes sense if we're dealing with reasonable, unbiased people. But then the minute you throw in political partisanship, the whole thing breaks. So very much like every other check and balance.
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and every other rule in American federal politics, unfortunately it can't stand up to much abuse. And I think what we've, I think what we're going to illustrate in this episode is just what an advantage the shadow docket has been for conservative lawmakers and those trying to push the country.
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ah ever more rightwards. So, before we get to just what is the Shadow Docket, let's talk about the the newsie piece that we're covering in this episode, which is ah on Tuesday, August 21st, the Supreme Court allowed the Trump administration to cut off uh over 1,700 health research grants that the federal government contends
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advance the terrible, awful notions of diversity, equity, and inclusion, or promote their words, gender ideology extremism. I'm getting really, really tired of the use of extremism by the federal government. Basically, it's just anything at all they disagree with is extremism, which itself's
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To me seems a little extreme. Now, this vote was actually closer than most. You're usually thinking, okay, it's going to be a 6-3 SCOTUS vote with the six conservatives and the three liberals. This is a 5-4 vote here. The justices lifted this order, this federal court order, and Chief Justice John Roberts actually joined the court's liberals in dissenting.
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And so, yeah, he's kind of switching it up a bit, throwing us uh a cheeky little, oh, he uh crossed the floor to the liberal side for this vote. Oh, will that happen again? Probably not, but you know, it was an interesting little tidbit. Didn't change anything because of course a majority is a majority when it comes to Supreme Court rulings. So what this all does is the injunction.
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by the federal court judge in Boston, ah stopped, or basically forced the National Institutes of Health to restore funding for more than 1700 grants. And these grants were all medical in nature, right? So the federal government will argue that, you know, they're, oh, they're DEI, they're transgender issues, they're all of these forbidden topics. ah
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They also focused on things like heart disease, HIV AIDS, Alzheimer's, uh alcohol and substance abuse, and mental health issues. And because some of them had a slant for things that didn't involve straight white men, they decided that these were all uh just complete wastes of money. Now, this ruling came from the Shadow Docket.
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And the Shadow Docket is, it sounds so sinister, but it is actually something that probably should exist. It has a good reason for existing. And that's simply because the Supreme Court takes a lot of time to do its work.
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Having a case move through the Supreme Court can take months sometimes You don't have months sometimes you only have days or weeks right and so the emergency docket is used for a lot of kind of time-sensitive appeals and This is the Supreme Court in essence ruling on
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Cases which have not yet reached a final judgment, right? So in this case of the medical research grants They didn't find that the Trump administration was right or wrong in cutting these grants They simply nullified an injunction and allowed the Trump administration to keep uh Cutting these grants. So they made no judgment on the case itself, which is still working its way
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probably up to them at some point. Where the Shadow Docket is traditionally used, these kind of emergency, hey, we need to do this quick, is things like stays of execution, injunctions, so like what we see with the, this was actually a removal of an injunction, but injunctions like putting a hold on something while people get more evidence or data is collected or, you know.
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just giving more time for a certain case, but it also includes summary decisions and what are called GVR orders, which is grant, vacate, or remand. And we'll get into some of these uh in a little bit more detail in a bit, but for example, vacate means they basically cancel the judgment of a lower court. So it can be very powerful. And what-
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Part of what makes the Shadow Docket kind of suspect in a lot of ways is that even though they're not rendering judgment in any of these cases, they are seriously affecting these cases, right? uh you know, either putting in injunctions or lifting injunctions can have huge impacts on the people who are...
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on either side of that case. in the example that we'll use the healthcare research grants. Now that the injunction has been removed by the Supreme Court, are able, the federal government is able to cut those grants with impunity. And even if later on the Supreme Court or another court finds that, oh no, all of these grants should be reinstated, it might be too late, right? The folks doing those
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those research studies will have moved on. Things will have been taken apart. know, offices will have been vacated. Jobs will have already been lost. So even if the Trump administration ends up losing, they'll still have won in a lot of the cases because there will be nothing to reinstate these grants for, right? The work will have already stopped and people will have had to move on to other things. It's not as simple as
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just starting funding again when you stop funding for something, right? Like in the example of the Department of Education or USAID, two federal government departments that have been completely gutted, right? Even if you restored their funding tomorrow and you gave them full funding, hell, double their funding, that doesn't undo the damage, right? You'd have to rehire, you'd have to retrain, you'd have to uh set up
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new systems because once something is gone and once those people are out the door, maybe you can hire some of them back, but maybe not. And so the damage is much easier to do than it is to undo. So getting back to kind of how the shadow docket works. So it's used when the court believes that an applicant will suffer irreparable harm if its request is not immediately granted.
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And historically speaking, the shadow docket is not real wasn't, I should say, wasn't uh often used for kind of serious legal or political rulings. But since 2017, since the first Trump administration, uh it's being increasingly used for consequential rulings, especially for requests by the DOJ, the Department of Justice, and especially for
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emergency stays of lower court rulings. So the Trump administration, if you've been following along with their numerous, numerous court battles, they don't have a lot of, they don't have much of a winning record when it comes to lower courts. A lot of lower courts find a lot of questionably legal things going on within the Trump administration's policies.
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And so the issue, often nationwide injunctions saying, oh, no, no, no, you can't do this. This is not legal. Stop it. And so what the Trump administration has been doing, both Trump 1 and Trump 2 now, is appealing to the Supreme Court in this shadow docket. so it's kind of a, it's the back door into the Supreme Court and the shadow docket, they'll
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issue decisions typically in a week or less after the application is filed. So you go from months to have a proper decision, to doing it in a week. And there's very limited time windows for the court to hear evidence for them to have expert testimony, right? The things that make a trial a trial, the things that make the justice system work, right?
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very expansive search for the facts of the matter, there's just not that much time for it. And sure, that's one thing when you're trying to get a stay of execution for your client who's on death row, it's a very different thing when the federal government is using it to quash injunctions from lower courts that stop them from implementing their very
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dangerous policies. So on one hand, the Shadow Docket kind of needs to exist for true emergency cases, cases where there's really just not any significant time to go through all the facts, right? You basically go to the Shadow Docket when you say, hey, we need more time to do this. Please give us an injunction. Give us more time.
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or remove this injunction so that we can keep doing this thing. It's very important. And so you kind of need some kind of system for that because otherwise the Supreme Court acts too slowly, but it's very much being exploited by the federal government because not only can they use this tactic to ah start the ball rolling on their
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their policies, but they have a suspiciously high winning record when it comes to cases on the shadow docket. the folks over at SCOTUS blog, and it's a great name for a website, they do awesome, awesome work there. If you're interested in the ins and outs of the Supreme Court and how it all works, absolutely check them out.
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posted on August 20th a fantastic article by Tarly Davis about the shadow docket and not just kind of how it works and what it's doing but the actual breakdown of the numbers right where we are at for cases and cases on kind of the conservative side or the liberal side and
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So she gathered all the emergency applications from the Supreme Court's 2000-2001 term through to its 24-25 term and kind of looked at how they all break down. So interestingly, in the most recent term, the 24-25 term when she was looking at that, uh she found that 75 % of the court's grants of relief had a conservative outcome.
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So that basically translates into the decision that they're making on the shadow docket uh went with, went for conservative lawmakers three quarters of the time when they sought relief from lower court injunctions, any number of um other roadblocks to their agenda. So she further breaks down this kind of time period. So from October 7th,
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24 to August 9 25 there were 119 emergency applications the biggest one is death penalty cases And those are always kind of the biggest because again They're very time-sensitive cases and heck if you're on death row Why not shoot the Supreme Court a little message being like hey, can we have a stay of execution? so yeah, 47 or approximately 39 % of all applications and The court didn't grant any of them
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in this year-long period. And uh they don't tend to grant them very often. So that's not super unusual, but it's kind of a Hail Mary, I suppose, if you're on death row. You might as well shoot them a little DM and see if they might just be feeling frisky and stay your execution. So the second category is called refiled. And that's 24 % of
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the applications or 29 purely in the numbers. so basically these are applications that have already come to one of the members of the Supreme Court and they declined to hear that that case. And so it's then you can refile it and try and get any of the other justices to hear you. So these ones are actually just
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kind of like uh the stays of execution in that they almost never ever get picked up. Since 2000, no refiled emergency applications have ever been granted. it's a thing that you can do as a uh lawyer or as a legal team, ah but don't expect good results for it. So we're more interested in the final category of cases here. So that's um applications involving
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Emergency relief. So these included uh judicial power cases, for example, challenging courts authority to constrain executive action. That's been a big thing in uh our second Trump administration, trying to constrain that executive action because that executive action is expanding and expanding at an alarming rate. um Then there's administrative state disputes. So regulatory enforcement falls under that.
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And there's also First Amendment conflicts, federalism questions, and that good old conflict between state and federal authority. States rights. I'm never going to get to not talk about states rights. So these are the big ones. So the other two categories are kind of like the busy work, They're just going to get denied anyway. These are the things that are having a
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big impact on people all over the world. These are the ones having a big impact on people all over the country. So nearly 75 % of these emergency relief applications involved asking the court to stay a lower court order, which is freezing whatever a judge below them told them to do or to not do. So we've seen this several times.
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uh including when the Department of Homeland Security sought to pause a district court order that stopped the Trump administration from ending the protected status of some uh Venezuelan citizens living in the United States. The Trump administration wanted to, of course, get rid of that protection so that they could begin deporting these people. And so that is kind of the perfect microcosm of uh
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Hey, this is something that's going to thousands and thousands of people. And, you know, they have these temporary protections, but the shadow docket allows the Trump administration to kind of poke the Supreme Court and go, hey, what if we didn't have to do this that the judge said we had to do this, this lower court judge? What if you could just kind of get rid of that ruling for us? And more often than not,
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the Supreme Court has gone with its conservative majority and said, yeah, sure, why not? So what SCOTUS blog found in all of this data that they looked at was that the court is agreeing with the executive, the Trump administration, a great deal more than they have agreed with administrations in the years past. So
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So during this period from October last year to August this year, the court granted 44 % of the substantive emergency application. So those are the big ones. Those are the stays, the stuff that actually affects multitudes of people. And that's nearly double the rate from the 23-24 term, so the Biden term. Now during Trump's first presidency, so that's...
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17 to 21, the court granted emergency relief at 46%. And then during Joe Biden's presidency overall, so 21 to 25, that rate dropped to 31%. So these are big percentages of shifts. But so far during Trump's second term, right, so just since January 20th, the grant rate is sitting at 67%, which is
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Wild. know, it's almost three times more than the 2023-24 term. So the narrative around the court consistently backing the Trump administration has really proven to be true here, and they've got the numbers to prove it. ah So they've been consistently more receptive to granting emergency requests from
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Trump than similar requests from the Biden administration. these grants have had disproportionately conservative outcomes. What's really interesting too is that when they looked at the 43 applications from the period studied, the if when they looked at the. So what's interesting is when they looked at the 43 substance for the 43 applications.
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So what's interesting is when they looked at the 43 relief applications from 2024 to 2025, the Supreme Court decisions on emergency applications, including grants and denials of relief, broke down pretty evenly by ideological direction. So they kind of sorted all of these applications into either conservative or liberal. And it was 51 % liberal, 49 % conservative. But when the court...
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chose to grant relief. granting relief in this case is just the applicant comes to you and says, hey, we gotta have this injunction removed, it's stopping us from doing something, or it's forcing us to do something, and it's terrible. uh 74 % of those grants produced conservative outcomes. And, yeah, since Trump won, this has been true, uh roughly
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three quarters of the grants, roughly three quarters of the granted emergency applications have produced conservative outcomes across different presidential administrations. But there's also something more going on here. We know the court has a conservative lean, so maybe none of this surprises you. And it didn't really surprise me. The sheer numbers really surprised me. The 67 % is huge, but...
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What's changed beyond just this conservative bias amongst the Supreme Court and kind of an enduring bias since the first Trump administration is that disagreements within the Supreme Court, like disagreements in a hyper-partisan United States, have grown over the years. So from 24 to 25, 67 % of
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the emergency relief applications had at least one justice publicly disagree with the majority. And that's way up from historical numbers. up till 2014, emergency cases, uh when looking at emergency cases, judges publicly disagreed in fewer than three cases per year, averaging about 13.5 % with a lot of years containing no disagreements whatsoever.
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And even when things started to kind of shift in the Supreme Court in and around 2014, those disagreements were on about 30 % of cases. Now the Supreme Court is far more fractured than it has ever been, which is probably a reflection, I think, on the country itself. But what's interesting with that is in these disagreements,
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A lot of times you get very scathing rebukes. um
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Justice Katanji Brown Jackson uh is kind of the leader of the liberal dissent in the Supreme Court. ah So she's issued 16 statements in disagreement, five in disagreements, 11 dissents. And the liberal justices, of course, frequently they will dissent together. um
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They've appeared in as a coalition seven uh times. On the conservative side, uh Clarence Thomas is the dissenting leader here with 13 total public statements, 11 disagreements, two dissents. of course, Thomas has been amongst the most conservative justice. Thomas has been amongst
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one of the most conservative justices for quite some time now, his being the hardcore dissenter on the conservative side is not particularly surprising. this, so the shadow docket really kind of illustrates this new era of the Supreme Court, which is uh far more at odds with itself, but far more in line with the current administration.
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And we've seen the results of this uh many times since Trump took office again. And I think it's important to realize just how useful the shadow doc it is, which is why I wanted to cover it today, and how it allows kind of a back door into the Supreme Court. Now, all of these cases that they're ruling on, nothing gets settled. And I know I've said that a couple of times here, but it
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just bears repeating. These are not rulings in a traditional sense. They're not banging the gavel and that's the end of the case never to be heard from again. These are ongoing and so you'll hear about them, you'll hear about the Supreme Court granting the Trump administration some relief and then you might not hear it again for a while but then you might see that case pop back up again and be like, didn't the Supreme Court rule on that? Well they didn't but they
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They basically tilted the table, right, for the Trump administration. That's what it really is. That's how the federal government is using these emergency dockets, is not to necessarily win their cases, but to give themselves a huge advantage. And sometimes, even if they're not going to win a case, they can do enough damage ah to departments or to organizations or gut funding, like they did
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in this healthcare example that it will not matter if they lose. last thing we're going to do is kind of come on back to the medical research grants and just take a moment to kind of figure out where we're going to be at with that. So Justice Jackson, she...
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She dissented a whole lot on this one as well, maybe even a disagreement. uh She called this Shadow Docket ruling bizarre and complained about her colleagues sending plaintiffs on a likely feudal multi-venue quest for complete relief. And uh she repeated a past assertion that the high court is bending over backwards to favor the Trump administration.
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And I had to include this quote because it is a Calvin and Hobbes quote, and Calvin and Hobbes is the greatest comic of all time. she said, Calvin Ball has only one rule. There are no fixed rules. We seem to have two. That one? And that this administration always wins. Is what she wrote, which is a fantastic piece of writing. So kudos to Judge Jackson there. Also, Calvin Ball strips were great.
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reminds me of much, better times. And yeah, she kind of hit it right on the head there and the numbers bear that out, right? We were seeing three quarters of these relief cases result in conservative outcomes. And the Trump administration is getting softballs from the Supreme Court any time it goes to the shadow docket, which is frequently. So what about the
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other point of view here, right? Why were they able to argue that these cuts should be made? Well, the grants uh in question, right? Because they focused on uh people of color, diversity, equity, inclusion, transgender issues, LGBTQ issues, uh they ran afoul of three
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Three of Trump's executive orders. Now, you know, we love executive orders on this show, and that's always been the case. So I'm not going to go through them all because we don't have that kind of time and my head can't take that. ah But I'm just going to quickly tell you which ones they were. They were ah basically his, some of his first day EOs.
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So, uh firstly, was defending women from gender ideology extremism and restoring biological truth to the federal government. And so this was the anti-trans EO. And um it ordered all federal agencies to remove statements, policies, regulations, forms, communications, other internal external messaging that promote or otherwise support
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basically anything but the male-female binary. So that was that one. The other one, or the second one, I should say, uh ending radical and wasteful government DEI programs and preferences. So this was the anti-DEI one. So this is the EO that spurred the Pentagon to start painting over walls and all of uh the kind of taken down memorials to uh
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you uh military members and uh so that you probably remember that one. finally, there was one the day after on January 21st, because I guess his pen, his autosigner got got tired. And so this was ending illegal discrimination and restoring merit based opportunity. So this was another kind of this was more of like a anti affirmative action almost.
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Also anti-DEI, there's just a lot of anti-DEI in the early days of this. so this is the one that kind of went after the private sector as well. Section 4 encouraging the private sector to end illegal DEI discrimination and preferences. Not illegal, by the way. um A lot of these EOs have a lot of errors in them, but hey, you know, what are you going to do? It's just the White House.
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It's just the executive department. uh So those three executive orders kind of formed the basis of the Trump administration's arguments that these medical research grants had to go. Now, the Supreme Court looked at that uh and said, well, that's kind of nice, but uh Congress...
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But they basically told the plaintiffs here, people uh suing to restore this funding, that they could only pursue their case in the Court of Federal Claims. And so they were technically in the wrong court, they could, uh you know, that's how they ruled in the shadow docket. so basically they just said, oh, you're just not in the right place.
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um Which is a little wild. The Court of Federal Claims, however, uh they could eventually award financial damages to the grantees if that court determines that the grants were illegally terminated, but wouldn't provide any sort of immediate relief, which is unfortunate to anyone who is trying to keep some of this research going, right? There's a lot of stuff that was mid-
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You know projects that were kind of mid running and they just had the the rug pulled from under them So it was very time sensitive to them as well so some of the the plaintiffs have already kind of Come out and said that You know, they're unable to continue the research that they were doing uh And some of them lost the ability to perform analysis of the data that they had already collected
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um They've lost research staff as well as, you know, graduate students that they had hired. um And worst of all, some studied participants had treatments or interventions interrupted, which is kind of awful, right? You're... When you think of, oh, hey, I've got this opportunity, maybe I've got this rare thing, this rare condition, or I've got this mental issue or any kind of other issue.
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And hey, there's a study might help me out and maybe you're doing that. Maybe it's going well. It's even more tragic. I think if it's going well and then all of a sudden, oh, hey, the federal government canceled all of our funding cut all of our staff and. Sorry, you're you're out of luck. So. This medical research is trying to improve the lives of, you know, people experiencing sometimes horrible.
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ailments or conditions and we don't know what the effects of these 1700 plus grants being cancelled will be. There might be breakthroughs and things that just will not happen now because the Trump administration decided that these forbidden topics cannot and should not be pursued and the Supreme Court and more damningly the Supreme Court said, yeah sure.
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That's fine. Right? They didn't go to the right place, the plaintiffs, so we can drop that injunction and now you're free to go about your business. And cut those programs. So, yeah, this is, I uh think, a really good example of why the shadow docket for the Supreme Court is so important.
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It has real effects on real people and it's done hastily and in a very biased manner, which it bears out in the data. So it's something that I think we're probably going to see a lot more of in the coming months and years because it's instant relief for the administration whenever they're taken to task by the judiciary, right? It weakens that
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check and that balance on the executive power. And I mean, if there was a theme for the politics of New America, it might be, oh boy, you might want to put some limits on executive power. But that's going to do it for this one. I hope you've enjoyed it, or at least learned something. I know sometimes these episodes get a little dark, and so this one is also. But uh yeah, you know, it's...
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always pays to be educated and yeah, so if you were wondering what the Shadow Docket was, ah this is what it's being used for today. Thanks so much for listening and we'll see you in the next one.
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Thanks for listening. If you enjoy the show, please subscribe, give us a five star rating on your podcast platform of choice, and tell all your friends. The Politics of New America is hosted by Nathan Stone and produced by Josh Carmody. You can follow us on Blue Sky at Politics New America.
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And this has been a Honda Mouse Production. Cut that out.