WASHINGTON — Supreme Court Justices Amy Coney Barrett and Elena Kagan explained the increased use of an emergency, or shadow, docket to fast-track cases without full briefings and oral arguments during testimony before the House Appropriations Committee on Tuesday.

Questioning the justices, Democratic lawmakers repeatedly raised concerns about the growing practice during President Donald Trump’s second term.

What You Need To Know

  • Weeks after the end of a historic term, Supreme Court Justices Elena Kagan and Amy Coney Barrett made a rare appearance before Congress on Tuesday

  • During testimony before the House Appropriations Committee, Democratic lawmakers repeatedly raised concerns about the Supreme Court's growing number of shadow docket rulings during President Donald Trump’s second term

  • Earlier this month, ProPublica reported that the Supreme Court issued 63 decisions on its shadow docket and 56 on its regular merit-based docket during its last session

  • Unlike the regular docket, where the Supreme Court gets to decide which cases it will consider, Barrett said of the shadow docket: “You just take all comers, and you have to grant or deny these motions as they’re filed”

“We have a more-than-ordinary emergency case load,” Kagan said in answer to a question. “I would say we have about an ordinary regular docket.”

Earlier this month, ProPublica reported that the Supreme Court issued 63 decisions on its shadow docket and 56 on its regular merit-based docket during its most recent session — a statistic Rep. Mark Pocan, D-Wis., cited Tuesday.

During the administrations of Presidents George W. Bush and Barack Obama, the emergency docket was used eight times in 16 years. In 2025, the Trump administration filed 32 emergency cases, according to the Brennan Center for Justice.

“The definition of what’s an emergency certainly seems to have changed, given the number of cases,” Pocan said, citing Brennan Center research that found the Trump administration had sought emergency relief from the Supreme Court 41 times during his entire first term.

“We have mandatory jurisdiction, in a sense, over all of these emergency applications because every single one of them we have to either grant or deny,” Barrett said when asked to explain the increase.

Unlike the regular docket, for which the Supreme Court gets to decide which cases it will consider, Barrett said of the shadow docket, “You just take all comers, and you have to grant or deny these motions as they’re filed.”

She added, “In every single case, we wind up doing something on the emergency docket because we’ve either denied relief or granted relief.”

Kagan attributed part of the increase in emergency cases to “the fact that the court did grant some of these petitions, and then you encourage everybody else to bring them to you … because people see that there is at least a potential for us to grant relief, so why not file a petition?”

According to the Brennan Center, the Trump administration has prevailed in about 75% of its emergency cases considered by the Supreme Court since Jan. 20, 2025. Of 28 cases, the court ruled in favor of the Trump administration at least partially 21 times and ruled against it seven times.

Historically, many emergency cases considered by the Supreme Court were requests to stay death row executions or to stop lower-court actions to prevent serious or irreparable harm, but judicial experts say that changed in 2016 when the Supreme Court issued an emergency ruling to stop President Barack Obama’s Clean Power Plan.

Emergency applications now mostly involve requests that the Supreme Court temporarily pause a lower court’s ruling without hearing oral argument or providing much, if any, explanation.

“There are downsides of using emergency relief,” Kagan said. “We don’t get the kind of briefing that we ordinarily do. We don’t get the argument that we ordinarily get, and we should consider those downsides when we decide how often to grant this relief.”

Kagan said the court is trying “to do better in important cases ensuring that we have some degree of sort of regularish process” to ask for arguments and get a sufficient briefing before deciding the case.

“Occasionally, we’ve done that, and that is something that I think we need to consider going forward as well,” she said.

Answering a question from Rep. Glenn Ivey, D-Md., about the court’s consideration of irreparable harm in making its decisions, Barrett said the Supreme Court’s emergency docket opinions “lay out the factors that are considered in grants of emergency relief, and irreparable harm is one of the factors, as is likelihood of success on the merits …. from the point of view of the applicant.”

If the person seeking emergency relief is the government, she added, “it would be evaluated from that perspective.”

“Litigants have long had the ability to seek interim relief from the court,” Kagan told Rep. Steny Hoyer, D-Md., who asked about whether the increase in shadow cases was budget or policy related. “We have seen a big change in the volume and the nature of such requests. The court is doing its best to adapt and respond.”

Kagan said there are “definitely questions about how it’s appropriate to use that docket, when it’s appropriate to use that docket, the standards to be applied (and) the way those standards actually work out in individual cases,” most of which do not yield unanimous decisions.

Kagan and Barrett gave their remarks during a House subcommittee hearing to justify the judiciary’s request for nearly $921 million to bolster security at federal courthouses, nearly $15 million of which would be for security at the Supreme Court.

The last time Supreme Court justices appeared before Congress to testify on budget and appropriations matter was in 2019, when Kagan was joined by Justice Samuel Alito. Coney Barrett and Kagan were also testifying before the Senate Appropriations Committee on Tuesday.

Spectrum News' Cassie Semyon contributed to this report.