John Oliver on Trump’s use of supreme court shadow dockets: ‘his go-to method to get his way’

On Sunday’s Last Week Tonight, John Oliver took an extended look into Donald Trump’s influence on the supreme court.

This comes in the wake of the highest US court giving their nod to multiple presidential executive orders, effectively giving a head start to Trump’s agenda even as cases are still working their way through the court system.

“It’s basically like a football referee saying, ‘Pending a final ruling on the legality of the quarterback having a gun, I’m just going to stand back and see where he’s going with this,” said Oliver.

After recapping how US cases are initially heard in district courts before moving on to the appeals court and finally the supreme court, Oliver explained how litigants can sidestep the established – and often lengthy – legal process by asking the supreme court’s shadow docket to provide a temporary ruling.

“Five votes among the [supreme court’s] nine justices are needed to grant a request for the court to intervene, and that request must meet certain criteria, including that the applicants would suffer ‘irreparable harm’ if it is not granted.”

Previously the court had generally only intervened in extreme emergency cases, such as to delay the execution of an inmate on death row when new case details emerged.

“But Trump’s now using the shadow docket for a lot more than just death penalty cases,” said Oliver. “If a lower court issues a ruling he doesn’t like – say, pausing an executive action until it’s been fully litigated – he’ll now run to the supreme court and ask them to rule in his favor on the shadow docket.”

In his second term, Trump has appealed to the shadow docket a record number of times, claiming he needs emergency rulings.

“This strategy is paying off,” noted Oliver. “In the last year alone, the courts issued decisions via the shadow docket that allowed this administration to cut hundreds of millions of dollars’ worth of grants to universities, dismiss every transgender service member from the military, cut a third of the Department of Education, fire hundreds of thousands of federal employees and refuse to spend $4bn in congressionally approved foreign aid.”

The six current conservative supreme court justices’ “work on the shadow docket has empowered some of Trump’s worst policies”, the host continued. “It’s now become his go-to method to get his way.”

The term of shadow docket is, in itself, “a bit bitchy”, said Oliver, adding that it implies a certain sneakiness. But “it is not unreasonable to have complaints about the shadow docket’s process, given the damage some of these rulings have done. In many cases, it has sure seemed like the court’s intervention caused a lot more ‘irreparable harm’ to people than Trump would have suffered by simply waiting for a regular ruling.”

Justices are often making sweeping decisions without understanding the full scope of a case, Oliver continued, before turning to 2025’s Noem v Vasquez Perdomo case, where the supreme court’s shadow docket paused a lower court’s injunction that had limited the ability of ICE agents to stop and question people based on racial profiling.

At the time, Justice Brett Kavanaugh said that he reached that conclusion because such ICE stops were “typically brief”. Oliver scoffed at the characterization. “The notion that any interaction with law enforcement is typically brief is something that only a white guy named Brett would confidently assert.” In fact, the case painted quite a different picture, detailing that one plaintiff was pushed against a fence with arms twisted behind this back, while the second was taken to a warehouse for questioning.

Oliver argued that such rulings empowered ICE agents to racially profile individuals based on their appearance or accent in Minneapolis earlier this year, where a number of stops escalated into violence with the killings of Renee Good and Alex Pretti. Such ICE stops are now known as “Kavanaugh stops”.

“We only know about Kavanaugh’s reasoning because he actually bothered to explain his logic,” said Oliver, “something that on the shadow docket the court doesn’t technically have to do.”

Last year, Justice Amy Coney Barrett spoke of how emergency orders present a “challenge” to the supreme court because they require the court to work much more quickly than it normally does.

“If your argument is, ‘we’re not really built for emergency docket decisions,’ then maybe you shouldn’t be choosing to do them all the fucking time,” said Oliver.

It also raises the question of what precedent such emergency decisions should set for lower courts. Five years ago Justice Samuel Alito said that they “do not make precedent on the underlying issue”. But now Kavanaugh and Neil Gorsuch argue the opposite and recently issued a ruling reprimanding a lower court for not treating a shadow docket decision as precedent, saying: “Lower courts may sometimes disagree with this court’s decisions, but they are never free to defy them.”

“It’s the judicial equivalent of being yelled at in the TSA line,” said Oliver.

“But maybe what will hurt the supreme court the most in the long run is that these decisions seem nakedly political,” said Oliver, noting that the cases Joe Biden brought to the shadow docket won 53% of the time while Trump’s cases win 84% of the time.

“This approach poses real risks to the court’s very legitimacy,” the host said. “There are a bunch of fixes that Congress could impose, especially as it controls the court’s budget, including simply requiring the court issues written explanations whenever ruling on the shadow docket, which really doesn’t seem like too much to ask.”

“Significant supreme court reforms have to be on the table,” said Oliver. “When the supreme court allows the president to act in ways contrary to statutes … that is seizing power from Congress. And maybe it’s time for Congress to start taking a little power back.

“This is a mess of the court’s own making. There’s something both frustrating and deeply patronizing about justices trying to issue unexplained rulings in the middle of the night, only popping their heads out for fawning interviews whenever they’ve got a shitty book to sell, and then scolding us for not understanding what’s going on inside their gorgeous, pristine minds.”

“This court has eroded people’s confidence to the point where it’s now considered a political arm rather than a necessary check on political power,” Oliver concluded. And if you ask me, if I may borrow a phrase, that actually qualifies as irreparable fucking harm.”