Checkpoint: America Is Starting to Govern by Emergency Order

Soly Moses

The Supreme Court is increasingly deciding what the government can do before it has determined whether it has the legal authority to do so. 

That should concern anyone, regardless of ideology. In So Ordered, Supreme Court Justice Samuel Alito warns that the Court is being frequently asked to resolve major disputes by emergency order, before the ordinary machinery of judicial review has run its course. 

The Court’s emergency docket is deciding cases while they are still unfolding in the lower courts. Unlike the Court’s ordinary docket, emergency applications often receive limited briefing and no oral argument. And the docket is no longer a marginal part of the Court’s work: during the 2024–25 term, the justices received 136 emergency applications—nearly twice the number of cases the Court typically hears after full briefing and oral argument.

According to a ProPublica analysis of court records spanning two decades, the justices issued 63 major rulings via the emergency docket, compared to just 56 traditional, signed opinions resulting from standard courtroom arguments.

This marked the first time in modern history that the Court had issued more of its high-stakes decisions through an opaque emergency process than through traditional, signed opinions following courtroom arguments.

Alito blames the escalation in part on presidents relying on executive orders rather than legislation. “Unless something changes there,” he warns, “I’m afraid this is going to continue.” Justice Ketanji Brown Jackson emphasized how this mode of governance comes at a cost to the Court itself.

Without clearer explanations for emergency decisions, she argued, the public has less ability to understand why the justices are doing what they are doing.

By September of 2026, President Trump’s second administration had filed 41 emergency applications with the Supreme Court, matching the total filed during his entire first term. By comparison, the administrations of George W. Bush and Barack Obama filed just eight emergency applications combined over 16 years. 

The Supreme Court recently allowed the Trump administration to continue deporting migrants to third countries while the legality of the policy remains under review. The Court’s emergency docket has also been used to restrict access to mifepristone, an abortion pill, before the Court has decided whether those restrictions are legally justified.

Emergency applications may be temporary in form, but the people caught in these disputes do not experience emergency orders as a hold until a future legal decision. They experience it as the law.

A migrant deported under a temporary order was still deported. A patient denied access to medication cannot undo the consequences of going without it if the Court later changes course.

There is nothing inherently troubling about the Court having an emergency docket. Some matters are genuinely time-sensitive: a prisoner facing imminent execution, or a nationwide eviction moratorium during the COVID-19 pandemic. In such cases, waiting for the ordinary judicial process to run its course can cause irreparable harm.

The problem is what happens when a mechanism designed for exceptional circumstances becomes a regular avenue for presidents to obtain decisions on major questions. One reason we have ended up with a system increasingly reliant on executive orders and emergency dockets is that Congress is failing to produce laws through the normal legislative process.

But Congress is slow by design: legislation requires debate, compromise, recorded votes, and enough political agreement to pass two chambers and reach the president’s desk. Polarization and gridlock have made Congress increasingly unable to resolve major disputes through legislation.

According to the Brennan Center for Justice, Congress held 362 roll-call votes in 2025—the second-lowest number in 25 years outside the pandemic period. Presidents have relied on another path: executive orders. And the emergency docket can help to legitimize these edicts before they are actually declared lawful. 

With Congress effectively removed from the equation, we are left with something resembling a two-branch system: an executive branch that can move at the speed of a pen stroke and a judicial branch that moves at the speed of litigation.

When the executive moves faster than the courts can adjudicate, the Supreme Court’s emergency docket becomes the only avenue for stopping it in real time. 

That is the peculiar power of the emergency docket: it does not necessarily determine what the law will be. It determines what the government can do while everyone else is still figuring that out. The distinction gives speed its own political power.

The side that moves fastest, secures the first injunction, the first stay, or the first emergency order, can shape reality before anyone receives a definitive legal answer.

The greater danger, then, may be to public trust in law itself: the belief that the law is principled, intelligible and more durable than the political moment. That is what the Court’s ordinary procedures are designed to protect: facts developed in lower courts, adversarial briefing, public argument and opinions that force justices to explain themselves. 

Research on the Court’s emergency procedures suggests that when those safeguards disappear, public support for the institution suffers—independent of whether people agree with the outcome. A court cannot maintain its authority by asking the public to trust conclusions it has not fully explained.

The Supreme Court may operate in secrecy, but it cannot expect the public to trust a system that leaves so much in the dark.