The Capture of SCOTUSBlog

One unfortunate outcome of Tom Goldstein’s legal difficulties is that what was once an immensely valuable news resource about the Supreme Court is now being run by Sam Alito superfan Sarah Isghur. And Ishgur doesn’t do subtle:

Even for me, this is pretty in the weeds, but the shift in tone in SCOTUSblog's coverage since Sarah Isgur and The Dispatch took over—more deferential to the Court, more reverential of the justices as celebrities, more credulous and stenographic across the board—has been…notable

[image or embed]— Jay Willis (@jaywillis.net) Dec 11, 2025 at 8:53 AM

So even though the new blog features the conservative legal academic who literally coined the more useful and accurately descriptive term, the new blog uses the tendentious and obfuscatory term recently suggested by Brett Kavanaugh rather than even the term (“emergency docket”) that both sides of the Court have been using,.

Vladeck explains why this new coinage is grossly misleading:

Leaving aside the interesting question of why Justice Kavanaugh doesn’t like Alito’s “emergency docket” terminology (I have a theory),4 there are, in my view, two very big reasons why calling the Court’s body of rulings on applications the “interim docket” is far more misleading than critics of the “shadow docket” terminology have claimed that that term is.5

First, as a practical matter, the Court’s interventions in these cases are producing massive, permanent, and almost certainly irrevocable effects. When the Court allowed the Trump administration to revoke Temporary Protected Status (TPS) for 600,000 Venezuelan migrants, that subjected many of those individuals to immediate arrest, detention, and removal from the country—removal that will almost certainly be impossible to undo even if the Court ultimately agrees with the lower courts that the revocation was unlawful.

When the Court allowed the Trump administration to fire more than 1400 employees of the Department of Education, that not only upended those folks’ lives, but it almost certainly led them to make other arrangements—new jobs; moving to new cities; etc.—that can’t be undone even if the Court ultimately decides that the government crossed the line. Ironically, it would be easier to describe these rulings as “interim” rulings if the Court was properly accounting for these irreparable harms, since a case could be made that the rulings are more about the equities than the merits. But the Court has silently (and inconsistently) moved away from that traditional, equitable analysis, one result of which is that these harms have mounted—rendering the “interim” tag increasingly inapt.

And that’s with respect to cases that might get back to the Court on the merits; there are plenty of “interim” rulings by the justices that will never come back—e.g., when the Court denies a stay of execution or when the party that loses at the emergency application stage otherwise drops the dispute (like California in the 2021 COVID cases). Thus, referring to the body of rulings in these cases as the “interim docket” is radically downplaying not just the real-world effects of the Court’s interventions, but the number of cases in which the Court’s intervention at the “interim” stage is its only one—because it conclusively resolved the dispute. When the Court closed the door to most universal injunctions in its ruling on the emergency applications in the birthright citizenship case, the whole point of the Court’s intervention, as Justice Kavanaugh himself underscored in his concurrence, was to provide conclusive guidance to lower courts about the proper scope of injunctions.

Second, as a precedential matter, although Justice Alito insisted in his 2021 speech that these rulings don’t create precedents, we now know better—thanks to the Court’s cryptic May order in Trump v. Boyle and a series of separate opinions from the justices applying Boyle since then. Whether or not one thinks rulings on emergency applications can or should have precedential effects, the Court has now repeatedly insisted that they do. And in his concurrence in the NIH case, Justice Gorsuch went further—heavily criticizing lower-court judges in three cases for defying the Court’s rulings on emergency applications, even though one of the rulings at issue was completely unexplained and the others were at least arguably distinguishable from the subsequent cases.

I’ve written elsewhere about what’s wrong with Gorsuch’s NIH concurrence; the relevant point for present purposes is that, if that’s how you view the doctrinal effect of the Court’s rulings on emergency applications (and Justice Kavanaugh joined Gorsuch’s NIH concurrence in full), then it’s no more accurate to call those decisions “interim” rulings than it would be to use that term for a ruling on the merits docket in a case that wasn’t final in the lower courts—such as an appeal of a grant or denial of a preliminary injunction or some other interlocutory order. In both contexts, the Court is making law, explicitly or implicitly, that it is expecting lower courts to follow in different cases. Indeed, Justice Gorsuch made a version of this exact point in NIH—in explaining why merits docket rulings on non-final appeals can also create precedents.

Thus, and unlike what was true as recently as the late 1970s, when even high-profile emergency applications were handled by individual justices “in chambers” and no one thought their rulings had precedential effects, the doctrinal consequences of the Court’s interventions makes it increasingly difficult to describe them as “interim” decisions.

Admittedly, as Vladeck goes on to explain, the “emergency docket” term is also highly misleading in its own way because the of the Court’s increasing tendency to intervene in cases that present nothing remotely resembling an “emergency.” But to call it the “interim docket” compounds the problem. I know a much more useful alternative! Anyway, what is clearly going to be the transformation of SOCTUSblog from a useful, relatively impartial information resource into a Federalist Society propaganda network is unfortunate, although this protesting-too-much shows that people like Ishgur know that the legitimacy of the Court is appropriately nosediving.

The darker irony here is that nobody has done more to discredit the Court’s use of the shadow docket than Kavanaugh himself. I don’t think the very real people being subject to very real arbitrary detentions because the Supreme Court greenlighted racial profiling based on numerous false assumptions are going to find the “interim” label very reassuring.