Many of us who follow the Supreme Court closely have complained that the Court has been issuing very significant decisions on emergency applications, often by the Government seeking a stay of a lower court order that prevented an agency from carrying out an important initiative, without explaining why it acted as it did. On December 23, two months after the Government sought to overturn lower court orders that restricted the Trump Administration’s ability to send the National Guard from Illinois and Texas to assist the Immigration and Customs Enforcement agency (ICE) in rounding up individuals who are not lawfully in this country, the Court denied the application, accompanied by two short opinions supporting the result and by a long and a short dissent. Trump v. Illinois, 25A443.

Reading those 25 pages has caused me to ask whether these criticisms of the so-called Shadow Docket (mine included) are misguided or at least overstated, calling to mind the saying, “Be careful what you wish for.”  Put another way, are the parties to this case, as well as the lower court judges and other litigants who have to grapple with these issues, in a better position than they would have been with a simple “Stay denied” order, given the incomplete and contradictory statements in these opinions?

The statute on which the President relied, 10 U.S.C. § 12406(3), authorizes him to send in the National Guard when the “regular forces are unable to execute the law,” in this case to assist ICE in arresting individuals who allegedly are not authorized to remain in the United States.  There is agreement that protesters in the vicinity of the ICE facility in Chicago made it more difficult for ICE to carry out its mission and that there was some violence associated with the protests, although the degree of interference is hotly contested.  In the Supreme Court, the parties assumed that the regular forces included only those working for civilian agencies, but the Court requested further briefing on the meaning of “regular forces” after Georgetown Law Center law professor Martin Lederman submitted an amicus brief arguing that, under the best reading of the law, the term applied to the regular armed forces. The Court’s five-Justice majority agreed, at least tentatively, with the amicus, but then went on to explore the likely consequences of that conclusion in light of the Posse Comitatus Act, 18 U.S.C. § 1385, that severely limits the power of the President to send armed forces to deal with violence in the States.  Justice Kavanaugh concurred in the result, but on a narrow ground: the President had not made a finding that the armed forces, not just civilian forces, were unable to quell the protests so that ICE could carry out its work.

Justice Alito, joined by Justice Thomas, issued a lengthy dissent, starting with the objection that the parties had chosen not to argue that regular forces meant only the regular armed forces and therefore the Court should not have opined on that issue, especially without full briefing and oral argument.  And, the dissents might have added, without full opinions exploring the many objections that they had to the brief majority ruling.  Those largely concerned the impact of the majority’s ruling on the ability of the President to send in the militia and others to prevent serious violence, and a sharp disagreement with the majority on where the balance of the equities lay.  Justice Gorsuch also dissented briefly, objecting to the Court opining on the far-reaching issues raised on the stay application, while agreeing with the other dissenters on the balance of equities, without indicating on what law the President could rely to issue the order being challenged.

From the perspective of this writer, the four conflicting opinions resulted in the worst outcome.  The majority made “tentative” legal conclusions, but they may not hold up after full briefing, and they surely did not respond to the many objections of the dissenters that at the very least raised questions that called out for answers.  It is unclear whether the President has a path to call up the National Guard to assist with the protesters in Illinois or even whether he may send in the military unless there is an insurrection or rebellion, or even then. 

This was not a case that lacked briefing on the legal issues.  The initial party briefs were 40 typed pages, and the Court allowed single space letter briefs and replies of 15 and 10 single spaced pages each, on top of the many amicus briefs supporting each side.  If the issues were of sufficient importance to warrant two rounds of briefing, the Court’s calendar surely had room for an oral argument, followed by full opinions, as it did last term in the universal injunction case, Trump v. CASA, Inc., 606 U.S. 831 (2025). 

Another better option would have been a simple denial of the stay application.  The majority agreed that the Government’s application had failed to show that the lower courts had erred in concluding that the President lacked the authority to call up the National Guard, on this record, which is the first and most important requirement to grant a stay.  Once that determination was made, there was no need to call for a second round of briefs, which generated a dozen more amicus submissions.  And on the issue of the balance of the equities, the State’s reply letter brief informed the Court that the Government had agreed to extend the district court’s temporary order until the court decided the merits. Moreover, the situation on the ground was fluid, and if the violence and interference worsened, the President could respond accordingly.  Finally, while it is uncertain, the dissent of Justices Alito and Thomas seemed more concerned about the discussion of the law in the unsigned opinion than with the denial of the stay itself.

Perhaps we critics of the lack of opinions in Shadow Docket cases should modify our position to insist on an explanation when a majority of the Court halts a lower court injunction, but to be much more forgiving when the order denies a stay.  That is, after all, what the Court generally does when it denies stays of executions, or when it declines to grant certiorari.  In those situations, as here, the majority may have many reasons for its conclusion, but the benefit of expressly stating them, even tentatively, is outweighed by the confusion that abbreviated opinions produce.

Alan B. Morrison is an associate dean at the George Washington University Law School, where he teaches civil procedure and constitutional law.