JUSTIN EVAN SMITH: Progressives Find Religion On The Shadow Docket

Not long ago, progressives blasted the Supreme Court for abusing the “shadow docket” – the issuing of unsigned, late-night rulings without full arguments or explanation. Then, late last month, the court did it again. Only this time, progressives are praising the court for intervening.

In an unsigned, late-night order, the justices issued an emergency stay halting the deportation of certain Venezuelan migrants under the Alien Enemies Act – a 1798 statute the Trump administration had controversially invoked. The case lacked a full factual record. No oral arguments were held.

Justice Samuel Alito dissented. And while progressives quickly caricatured his brief opinion as anti-immigrant, the substance of his dissent had little to do with immigration and everything to do with process. His warning was plain: A court that acts “literally in the middle of the night” on untested claims and incomplete records risks its own legitimacy – no matter how noble the outcome may seem.

The critique wasn’t ideological. It was institutional.

What Alito defended was not executive power, but judicial integrity. He objected to the method, not the result. He argued, quite reasonably, that the court has a responsibility to hear both sides, develop a factual record, and deliberate before intervening in politically sensitive, legally complex matters. Skipping those steps, even in service of a seemingly just cause, is a dangerous precedent.