Adam Liptak on the ‘Shadow Docket,’ a Changing Supreme Court, and How It’s Covered
At the 2026 Constitutional Law Conference on April 24, New York Times Chief Legal Affairs Correspondent Adam Liptak spotlighted what he described as one of the most consequential—and least understood—developments at the US Supreme Court: the rise of the emergency, interim, or “shadow” docket.
Those decisions, he explained, often come without full briefing, oral argument, or advance notice. “You don’t get any heads up,” Liptak said. “And there’s often no reasoning.”
That combination—speed, opacity, and high stakes—has made the shadow docket a defining feature of the modern Court and of the challenge of covering it. (The term “shadow docket” was coined in 2015 by William Baude, the Harry Kalven, Jr Professor of Law and director of the Constitutional Law Institute.)
Liptak pointed to internal Supreme Court memoranda he and Jodi Kantor recently reported on as an example of how these difficult-to-scrutinize cases can mark turning points in the Court’s approach. In that reporting, they used the memoranda to shine a light on the behind-the-scenes deliberations in West Virginia v. EPA, a 2016 case in which a one-page, unsigned order halted implementation of President Barack Obama’s Clean Power Plan, the signature environmental policy of his administration.
Providing those documents, Liptak said, allows readers to assess what took place for themselves.
“It gives rise to a really valuable and interesting discussion,” he said.
At the same time, such reporting highlights a central tension in covering the Court.
“The government needs to maintain its secrets to do its job,” Liptak said. “And the press’s job is to bring newsworthy information to light.”
That tension, he added, is inherent in reporting on an institution whose most important decisions are often shaped behind closed doors.
“The government needs to maintain its secrets to do its job. And the press’s job is to bring newsworthy information to light.” Adam Liptak
Liptak’s remarks came during a wide-ranging conversation with Professor Sam Bray, held in a packed Law School auditorium. Liptak, the Constitutional Law Institute’s inaugural journalist-in-residence, also explored how both the Court and the media environment surrounding it have changed—reshaping not only how decisions are made, but how they are understood by the public.
The Pressures of Real-Time Reporting
Covering the Court today, Liptak said, is increasingly defined by speed.
“There’s an inverse relationship between speed and quality,” he said. “You’re writing within minutes, and then trying to make the story better over the course of the day.”
Those pressures are especially acute in emergency docket cases but extend across the Court’s work. Early versions of stories prioritize speed and accuracy on the outcome, with deeper analysis layered in later.
“It doesn’t result in a good, coherent story at all,” he said of some initial versions of articles.
A Court More Open—and More Immediate
At the same time, the Court has become more transparent on some fronts, particularly since the COVID-19 pandemic prompted the introduction of live audio of oral arguments.
“That was revolutionary,” Liptak said. “It allows anyone to listen and get most of the available information.”
But that access has come at a cost. Where reporters once operated with a degree of exclusivity—hearing arguments in the courtroom and synthesizing them for others—live audio has placed everyone, including the public, on equal footing.
“Everyone is in on the game,” Liptak said. “You have to start writing during the argument.”
A Longer, Less Dynamic Oral Argument
Liptak also pointed to changes in the Court’s internal processes, particularly oral arguments, which have grown longer and, in his view, less effective.
Before the pandemic, arguments were tightly timed and marked by rapid, free-flowing exchanges between justices and advocates. Pandemic-era adjustments introduced a more structured format, with justices taking turns to ask questions—an approach that has since evolved into a hybrid system.
“It’s not great,” Liptak said. “It goes on forever.”
While the changes have broadened participation, they have reduced the dynamic back-and-forth that once defined Supreme Court argument, he observed.
From Unpredictability to Stability
Perhaps the most consequential shift, Liptak suggested, lies in the Court’s composition.
For years, Justice Anthony Kennedy served as the Court’s pivotal “swing vote,” creating uncertainty in closely divided cases.
“When Kennedy was there, it felt like everyone was arguing to him,” Liptak said.
Following Kennedy’s retirement and the death of Justice Ruth Bader Ginsburg, that era gave way to a more stable alignment of a 6–3 conservative majority.
“The Court is more predictable now,” Liptak said. “There’s less sense that something unexpected might happen.”
At the same time, the Court is deciding far fewer cases than in earlier decades, narrowing the range of issues it addresses while concentrating its influence on a smaller set of disputes, he noted.
Scholarship and the Court’s Work
As the Court’s ideological center of gravity has shifted, so too has its engagement with legal scholarship, particularly in the realm of originalism.
While justices frequently cite academic work, Liptak suggested its role may be more rhetorical than substantive.
“I think it’s more decorative than actually helping frame the issues,” he said.
On the Court’s ‘Celebrity Culture’
In the audience Q&A, Liptak addressed topics including live-streamed arguments, the influence of social science research, and the increasing public visibility of the justices.
He expressed skepticism about what he described as a growing “celebrity culture” around the Court, suggesting it may be “not healthy” for the institution.
Liptak also acknowledged the challenge of writing for both legal experts and general readers.
“I’m writing for a general readership,” he said. “You have to serve that audience.”
The conversation capped a week of activities for Liptak as the Constitutional Law Institute’s journalist-in-residence, including a welcome reception dinner with Law School faculty and a dialogue with Professor Baude focusing on the First Amendment at the Institute of Politics.
Samuel L. Bray
Professor of Law, Walter Mander Research Scholar