The Money Behind the Supreme Court's Shadow Docket
Trump’s judges don't just maintain a shadow docket, they've created a shadow government of oligarch-funded authoritarianism
Will the kerfuffle between Texas Democrats and Republicans end up in front of the Supreme Court? Let’s hope not.
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The Roberts Supreme Court has been aiding and abetting the Trump Regime’s drift toward authoritarianism by maintaining what legal beagles call “a shadow docket.”
This goes beyond the awful decisions that created people out of corporations (Citizens United), destroyed women’s bodily autonomy, and gave Trump immunity from killing whoever he wants while in office. Those cases forced each justice to weigh in with a vote. Often, an opinion related to the vote is also registered, which is how we learn just how far to the right some of them have proven to be.
The shadow docket takes it all to a new level of mischief because such troublesome prerequisites as oral and written arguments by opposing sides in a case are abandoned.
Most courts in the United States maintain a “docket” of cases they’re assigned to work on. The Supreme Court does, too, but, through the shadow docket, many cases are turned away, temporarily returned to sender, or postponed for a variety of arcane reasons.
In Supreme Court jargon, the normal docket is referred to as the merits docket. Cases in the merits docket are fully adjudicated. There’s a trial where each side makes presentations.
Last year, there were only 59 of these merits docket cases. The two years before that, there were 59 in each year. Each of the two years before that, there were 52. There was a time when the court decided 160 or so cases per year. When Roberts testified at his Senate confirmation hearing, he complained that the docket had grown too small, insisting that it should be at least 100.
It looks like he’s decided to do something about it by adding cases to the shadow docket, known more formally as the emergency docket.
These are cases that the Supreme Court declines to rule on but often imposes an order of some kind to halt or allow to proceed legislation, an executive order, or, more commonly, a lower court ruling. They are considered part of the emergency docket because there is a sense of urgency behind finding some guidance from the court.
Cases in the shadow docket are not argued formally in court. Nobody shows up for either of the interested parties in the case. There aren’t even formal briefings filed on behalf of either party. They’re rulings without argument, and thus, some would argue, merit.
In the Supreme Court’s 2023-24 term, there were 44 cases handled via the shadow docket. So far, during the 2024-25 term, there have been 113.1
In other words, Roberts has found a way to circumvent his own judicial system to help the Trump regime establish its authoritarian grip on the country.
Recent shadow docket rulings include:2
May 22: Trump v. Wilcox, which overturned a preliminary injunction by a lower court when the regime circumvented congressional authority by removing Gwynne Wilcox as a National Labor Relations Board kicking, and kicking Cathy Harris off the Merit Systems Protection Board, which is a government board designed to discourage partisan politics during bureaucratic reshufflings.
June 6: Social Security Administration v. American Federation of State, County, and Municipal Employees, which overruled a lower court that tried to put a halt to DOGE MuskBrats accessing Americans’ personal information through Social Security.
June 23: Department of Homeland Security v. D.V.D, which was a devastating ruling that allowed the regime to deport immigrants to countries they were not associated with, even if their due process rights were violated. This is the ruling that, for example, allowed a Salvadoran to be deported to Sudan or another war zone, thus disappearing that immigrant forever, never to be heard from again.
July 8: Trump v. American Federation of Government Employees, which overruled a district court’s ruling preventing the mass firing of employees.
July 14 (aka Bastille Day): McMahon v. New York, which erased a district court ruling preventing the elimination of the Department of Education through a mass firing mechanism (if you fire all the employees, there goes the department’s functionality).
July 23: Trump v. Boyle, which allowed the regime to fire three Consumer Product Safety Commission commissioners despite being protected by law from getting the axe unless it was for cause. This, too, overruled a lower court decision.
The nature of shadow docket cases is that they can come back in front of the Supreme Court for a full review, but this takes time. It doesn’t help immigrants kidnapped by ICE goons and sent to foreign gulags.
Before the November election, I wrote this in one of my Substack articles:
If Trump somehow manages to sneak into the Oval Office a second time, the Federalist Society will go on a feeding frenzy.
If you think recent decisions affecting everything from Biden’s school loans to immigration and abortion are bad now, you ain’t seen nothin’ yet.
And here we are.
There are better places on Substack than here to dig into the case “law” behind recent decisions that are empowering a madman to gain further control over the government, which will inevitably be handed off to the tech bros who arranged this unwanted marriage with America. I’m not a lawyer. Just a pissed off citizen.
What I’m hoping to help you see is why we are stuck with these goons in the first place, and who owns them.
And the answer to that is a shadowy network of oligarchs using an organization of attorneys, legal scholars, and judges called the Federalist Society to populate judgeships and make power moves across the breadth of the American judiciary.
What is the Federalist Society?
In 1982, a group of law students from Yale, the University of Chicago, and Harvard started a little club called The Federalist Society. At first, it was just sort of a college debate club where like-minded libertarians could cry on each other’s shoulders and complain about liberal meanies.
Gary S. Lawson, who teaches at Boston University School of Law and is one of the Federalist Society’s biggest cheerleaders, explains this mood when he describes the horrors3 (insert sarcasm font here) he experienced while interacting with his fellow law students:
The atmosphere was, here’s the best way I can describe it.
Any time a student in class said anything that could remotely be considered right of center a good chunk of the class would hiss.
Literally vocal hisss, in fact one of my counter-lines to that, “Is something wrong with the heating system?”
More than butt-hurt by their fire-breathing libtard peers, Lawson and his ilk were also concerned about Supreme Court decisions that enshrined voting rights for Blacks, declared school segregation and Bible reading in public schools unconstitutional, and, further, dared to give criminal suspects the right to remain silent (Miranda).
In the wake of Phyllis Schlafly undermining her fellow women by bringing out the heavy artillery against the Equal Rights Amendment and abortion (and simultaneously leading the fight against child care4), a quiet, smoky room began to emerge in the nation’s elite colleges.
Since those early days, the smoky room has become a lethal grab for power.
The Harvard Gazette, the official news website for Harvard University, calls the current incarnation of the Federalist Society “The most influential legal organization in U.S. history.”5
I don’t know a lot about the Harvard Gazette, but I doubt, unlike me, that it is prone to hyperbole. Why, then, would it describe an organization most Americans have never heard of in such terms?
Sometimes, it’s just best to respond with pictures. Take a look at the image at the top of this article. Go ahead, scroll up. I can wait. I’ll bold the next sentence so it’s easy to get back to.
The Supreme Court justices whose faces you can see in the image were all provided to you courtesy of the Federalist Society.6
The other justices, those you can’t see, are insignificant. Faceless. They’re only warming seats for the next Federalist Society justice. Who knows? Maybe Aileen Cannon, the Federalist Society judge who gave so much judicial hope to the Vermin of Mar-a-Lago that he was able to stumble back into the Oval Office.
In fact, it’s a good bet that the next Republican president, be it Trump or whoever soon replaces him (tell me he’s not on his last legs and I’ll laugh out loud), will reward Cannon’s legal hooliganism with a Supreme Court seat unless the Republican Party is licking its wounds from a midterm election loss so profound that they finally extract the MAGA cancer.
The Federalist Society quickly morphed from a bunch of cry babies in law school to an organization whose primary aim is to seat as many conservative or nationalist judges as possible, as quickly as possible.
This activity is nothing new. They’ve been at it since the days of Reagan.
According to Ballotpedia:7
The Federalist Society has played a role in the judicial selection process for Republican presidents since the administration of former President Ronald Reagan (R).
Reagan nominated Robert Bork and Antonin Scalia, both faculty advisors for The Federalist Society, to the United States Court of Appeals for the District of Columbia Circuit and the United States Supreme Court. Lee Liberman Otis, a co-founder of the society, later led the judicial selection efforts of the White House Counsel’s office under former President George H. W. Bush (R).
Former President George W. Bush (R) took The Federalist Society’s recommendations into consideration before nominating federal judges. His nominees to the Supreme Court, John Roberts and Samuel Alito, both had relationships with the society.
In addition, roughly half of Bush’s appointees to federal courts of appeals were society members. The Federalist Society also helped to assemble President Donald Trump’s (R) list of 21 potential Supreme Court nominees. His eventual pick, Neil Gorsuch, is a member of the society.
Brett Kavanaugh has been a member of the Federalist Society since his keg-soaked days at Yale Law School. Clarence Thomas has said that he’s “been a part of the Federalist Society now since meeting with them… in the 1980s”8
Amy Coney Barrett, who was offered Ruth Bader Ginsburg’s seat just three days after Ginsburg died9, and gleefully accepted, was a member of the Federalist Society until she was appointed to a federal appeals court position in Chicago.
But her association didn’t end there. The financial disclosure form10 she was required to fill out for Ginsburg’s seat revealed that she spoke for them four times after she technically left the group.
Big, big money is involved.
On a certain level, it’s understandable that a bunch of law students, feeling disaffected from their liberal brethren in law school, would want to start a group to try to influence things.
But it has, maybe even unbeknownst to them, become a tool of very, very big money. It is now under the direct control of a few rich people who could purchase every home in a ten-mile radius of where you live.
One of those big money dealers is a guy named Barre Seid, a 90-year-old Chicago industrialist who recently, literally, donated his entire 1.6 billion dollar company to the main financial conduit of the Federalist Society, a guy named Leonard Leo, the Federalist Society’s executive vice president.11
He gave this company to Leo tax-free as part of trust in a shady but, apparently, legal transaction that is pretty much beyond my understanding.
This means that someone most Americans have still never heard of, Leonard Leo, is now one of the most powerful people in America. All because a 90-year-old mudslinger12 decided to piss on America one more time before he dies.
Leonard Leo doesn’t care if your daughter has to keep her baby after being raped or if the western states are in flames in perpetuity or if hurricanes batter coastal cities with ever-growing power and frequency. And he certainly doesn’t care about the home insurance crisis caused by climate change disasters.
Leo isn’t just another obnoxious American nationalist. One of his greatest admirers, Clarence “Coke Can” Thomas, has referred to him as the “third most powerful person in the world.” Rupert Murdoch’s Wall Street Journal once gushed that he was “Trump’s Supreme Court whisperer.”
He is credited by many as being a one-man Roe wrecking ball. Leonard Leo’s dark money groups spent $480 million to defeat Roe v. Wade. According to ProPublica:13
Leo helped the president appoint and confirm more than 200 nominees to the federal bench, most famously Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Thanks to Clarence Thomas and the right-wing SCOTUS’s Citizens United Decision (ProPublica again)…
…The Marble Freedom Trust is a so-called dark money group that is not required to publicly disclose its donors. It has wide latitude to spend directly on elections as well as on ideological projects such as funding issue-advocacy groups, think tanks, universities, religious institutions and organizing efforts.
What makes men like him particularly dangerous is that far-right nationalists like Leo aren’t playing the old game of running fancy ads on television. The tame stuff we once saw in political advertising, like the Willie Horton ads14 (insert sarcasm font again) is long gone.
They’re in the business of pure, unadulterated disinformation. Leo has known for a long time that the more often you tell a lie, the quicker it becomes the truth. He now has a $1.6 billion war chest to spread his gospel of hate and disinformation through the U.S. court system.
According to a ProPublica newsletter,15 Seid, Leo’s financier, has his own history of spreading toxic politics. He’s poured money into a right-wing nuthouse called the Heartland Institute, which is best known for distributing 28 million anti-Islamic DVDs in 200816 and somehow comparing belief in global warming to mass murder.17
Leonard Leo’s dark money groups spent $480 million to defeat Roe v. Wade.
Seid and Leo are almost literally in bed together. Seid donated his entire company, Tripp Lite, to Leo’s Marble Freedom Trust. That’s where the $1.6 billion comes from.
Because Marble Freedom Trust is a trust, nobody had to pay taxes on the transaction. This means that Leo can invest more than one and a half billion dollars spreading misinformation, and nobody will know what hit them, which is what happened with Roe.
It’s not hyperbole to say that the current Supreme Court was purchased by Leonard Leo. His ties to the corrupt Supreme Court are strong enough that Clarence Thomas recently hired Leo’s PR firm to promote a new release of Thomas’s memoir.18
The Federalist Society has already done a lot of damage without access to that $1.6 billion they now get to play with. So just think about what it will be able to do next.
According to the Washington Post:19
Twenty-five of the 30 appeals court judges Trump has appointed are or were members of the society.
Let’s look at a few of the things the Federalist Society has “accomplished” just in the last few years through their new majority in the Supreme Court:
Overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization (2022).
Gutted the EPA while the West burns in West Virginia v. EPA (2022).
Gutted Miranda in Vega v. Tekoh (2022).
Gutted the Voting Rights Act in Shelby County v. Holder (2013).
Put the brakes on gun control in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) and McDonald v. City of Chicago (2010).
Declared corporations people and institutionalized dark money in politics in Citizens United v. FEC (2010).
Gave presidents full immunity for any actions taken while performing their executive duties as president in 23-939 Trump v. United States (07/01/2024)
Cannon’s string of rulings that allowed Trump to walk free and into the White House was a mere reflection of our grimmer fate.
Cannon’s end-around on Jack Smith created her own legal standards as part of a glimpse into the future we are now experiencing. Other Trump-appointed judges have done the same. And there are a lot of them. We’ve seen it multiple times during the Trump years, especially by the 5th Circuit Court of Appeals.20
Things will get much worse before they get better. Federalist judges will start saying that the law is whatever they say it is, and nobody will be able to stop them. The Supreme Court will back them up.
Soon, appeals will be exercises in futility. Judges will rule by fiat. They’ve already become an extension of the executive branch by routinely snuffing out regulations and executive orders that don’t match their ideology.
I often harp on the importance of local politics. The Republicans are masters at the game. While you and I are posting or reading screeds on Substack or Medium or whatever, Republicans are running for and winning school board seats or becoming county judges.
With this $1.6 billion cash infusion, the Federalist Society will now be able to run campaigns for every judge in every county in the country.
Can you imagine the state of judicial law now that Kamala lost the presidency, mostly because Joe Rogan bros didn’t want a smart woman to be president? Can you picture America’s most famous convict picking from among the worst that the Federalist Society has to offer after that $1.6 billion hammers away at American jurisprudence?
Aileen Cannon’s antics will seem whimsical in comparison.
So what’s the answer to this mess?
Our last hope is supposed to be the midterms, but as the Texas fight over redistricting shows, Republicans have decided to turn this into a formal civil war. Democrats are, for once, showing signs of fighting back, but it might be too late.
But we can’t give up hope. We need to do everything in our power to make sure the 2026 midterm elections happen without a hitch, and Democrats win by such overwhelming numbers that patches of inevitable Republican voter fraud can’t alter the outcome.
That way, lawmakers might expand on ideas like this:
Congress Weighs First District Court Expansion Since 1990
The idea is simple. Expand the number of seats in every federal judicial district. Expand the Supreme Court. Believe it or not, there is some bipartisan support for expanding the number of federal district court judges, but that support is driven by an impossible caseload, not politics. So most of the plans to do that are softer than the Orange Pedopredator’s underbelly.
America is run by corporations. It’s easy to sigh and roll over and hope it all somehow goes away. But it won’t. It’s going to keep getting worse, and worse, and worse until one day you are looking across the street and seeing your neighbors hauled away in the middle of the night. Oh, right, that’s already happening.
You’ll never know what happened to that nice immigrant family that works so hard because everyone will be tight-lipped and afraid to question the menace of America’s expanding police state while you’re bingeing on your favorite streaming service.
Not to mention the young pregnant woman who is in prison after some other neighbors ratted on her for an abortion.
This is the tomorrow that the Federalist Society will bring you. They’ve taken Texas, Florida, and much of the South. They’ve already chipped away at Miranda. There’s more to come.
Today, in America, there is one legitimate political party. It, too, is largely controlled and manipulated by corporations.
That said, those who say there’s no difference between the two parties are simply wrong. One party is controlled by a few uber-rich billionaires who want to strip away rights that have taken 250 years to achieve. The other party is controlled by corporations whose main sin is that they want your money.
There actually is a big difference.
We need to reach the point, somehow, where the current version of the Democratic Party is the choice of moderate conservatives and centrists, and a new, more enlightened party of the left emerges.
The only way to do that is to completely dismember the Republican Party. It may seem impossible, but it’s not. It starts by swarming to the polls during the midterms and voting out the nationalists who want to strip away your rights.
It means taking to the streets, like you’ve been doing.
Creating a plurality of Democrats across the two branches that are still somewhat in people’s hands can lead to legislation against dark money.
After that, the work on the next phase can begin.
But there’s not much time left. America is on life support. If Americans allow all three branches of government to fall into the hands of the Federalist Society and their allies by not voting, again, they’ll only have themselves to blame.
Local elections are more important than ever. Barre Seid and Leonard Leo are counting on you not voting.
If you’re a hard-core leftist or a Bernie Sanders social democrat, sorry to say, you’re just plum out of luck until the aspirations of white and Christian nationalists are completely extinguished.
And if you’re a centrist who’s not comfortable with some Democrats, consider the future a little more carefully.
So, you know, suck it up. Vote. Even if you have to vote for someone you don’t much like. It’s the only way out of this mess.
Notes
Back to the Texas redistricting question. Will the Supreme Court intervene? According to the Scotusblog, there’s a good chance the answer is no. Discussing recent Supreme Court decisions, they point out:21
Of the 56 decisions, only three were reviewing state court rulings. This is not a one-year phenomena. A year ago, only four decisions were reviewing state court decisions, and the year before that it was five. It certainly means that state court judges can rule knowing that the odds of the Supreme Court granting review in one of their cases is very tiny.
If Trump tries to file an emergency docket case, his chances of getting it are close to zero, because he has no standing. If Abbott tries to file it, the chances also seem small, because it’s a state matter. If Democrats play the game well, the awful game Republicans are trying to play will be stuck in litigation beyond the midterms. But that’s just an uneducated guess, unfortunately.
Further reading:
One man's outsized role in shaping the Supreme Court and overturning Roe
Clarence Thomas' Strange Pick to Promote His Book Says It All
Are Heartland billboards the beginning of the end for climate denial?
Footnotes
Chemerinsky, Erwin. 2025. “By the Numbers.” SCOTUSblog. July 2025. https://www.scotusblog.com/2025/07/by-the-numbers/.
“Emergency Docket 2025-26.” 2024. SCOTUSblog. 2024. https://www.scotusblog.com/case-files/emergency/emergency-docket-2025/.
gazettebeckycoleman. 2021. “The Conservative Club That Came to Dominate the Supreme Court.” Harvard Gazette. March 4, 2021. https://news.harvard.edu/gazette/story/2021/03/in-audiobook-takeover-noah-feldman-lidia-jean-kott-explore-how-federalist-society-captured-supreme-court/.
Cohen, Nancy L. 2013. “The National Day-Care Law That Wasn’t.” The New Republic. April 24, 2013. https://newrepublic.com/article/113009/child-care-america-was-very-close-universal-day-care.
https://www.facebook.com/profile.php?id=589342445&ref=br_rs, and https://www.facebook.com/david.montgomery.5682944. 2019. “How the Federalist Society Is Helping Conservatives Win the Judicial War.” Washington Post. The Washington Post. January 2, 2019. https://www.washingtonpost.com/news/magazine/wp/2019/01/02/feature/conquerors-of-the-courts/.
“The Federalist Society.” 2021. Ballotpedia. 2021. https://ballotpedia.org/The_Federalist_Society.
Alder, Madison, and Kimberly Strawbridge Robinson. 2020. “Trump Offered Barrett Seat Three Days after Ginsburg Died (1).” @BLaw. September 29, 2020. https://news.bloomberglaw.com/us-law-week/barrett-left-federalist-society-same-year-joined-federal-bench.
https://fixthecourt.com/wp-content/uploads/2020/09/Barrett-AC-2019-FD.pdf (PDF)
Perez,Andy, Andrew. 2022. “How a Secretive Billionaire Handed His Fortune to the Architect of the Right-Wing Takeover of the Courts.” ProPublica. August 22, 2022. https://www.propublica.org/article/dark-money-leonard-leo-barre-seid.
The. 2022. “An Unusual $1.6 Billion Donation from a Chicago Businessman Bolsters Conservatives.” Chicago Tribune. August 22, 2022. https://www.chicagotribune.com/2022/08/22/an-unusual-16-billion-donation-from-a-chicago-businessman-bolsters-conservatives/.
https://link.propublica.org/click/28859189.24084/aHR0cHM6Ly93d3cucHJvcHVibGljYS5vcmcvbmV3c2xldHRlcnMvZGlzcGF0Y2hlcz9zb3VyY2U9bmV3c2xldHRlci1mb290ZXI/5ef4f3e6b1dd8844e60ea6faB2d20e473
Elliott, Justin. 2010. “Mystery of Who Funded Right-Wing ‘Radical Islam’ Campaign Deepens - Salon.com.” Salon.com. November 16, 2010. https://www.salon.com/2010/11/16/clarion_fund_obsession_dvds/.
Lewandowsky, Stephan. 2012. “Are Heartland Billboards the Beginning of the End for Climate Denial?” The Conversation. May 7, 2012. https://theconversation.com/are-heartland-billboards-the-beginning-of-the-end-for-climate-denial-6888?source=post_page-----26b8f88e1a8a--------------------------------.
Sollenberger, Roger. 2022. “Clarence Thomas’ Strange Pick to Promote His Book Says It All.” The Daily Beast. March 8, 2022. https://www.thedailybeast.com/supreme-court-justice-clarence-thomas-strange-pick-to-promote-his-book-says-it-all/?source=post_page-----26b8f88e1a8a--------------------------------.
beatricearonson. 2024. “The 5th Circuit Court of Appeals Is Spearheading a Judicial Power Grab.” Center for American Progress. May 15, 2024. https://www.americanprogress.org/article/the-5th-circuit-court-of-appeals-is-spearheading-a-judicial-power-grab/.
1. Good presentation of the mess we are in with the Federalist Society.
2. I caught your subtle reference to your birthday.
3. Had forgotten the details of the Willie Horton nonsense.
4. I am a Democratic Socialist. Can you be more specific about how long I have to wait my turn. I have had my arm raised since 1971, and it's gone to sleep.
5. I watched the confirmation hearings of Thomas, Coney Barrett, and Kavanaugh. I didn't see how they could be confirmed. The men are just wackos. Ms. Coney Barrett is plain spooky.
Local action, start at the bottom.