The Supreme Court divides its website for official writings by the justices into two main parts: “Opinions of the Court” and “Opinions Relating to Orders.” (The court also maintains another website location that is seldom used today, entitled “In-Chambers Opinions” – it contains nothing at all since March 2024.) Contrary to public perception, there is no formal “emergency” or “interim” docket in the court’s public presentation.
It’s time to acknowledge this “Orders docket” as it exists in full, and why it matters for a complete picture of the Supreme Court’s operations. I think the semiotic labeling controversy about descriptors like “emergency,” “interim,” and “shadow” docket could be put to rest if commentators simply stuck to the court’s own term: the orders docket.
After a descriptive account of the orders docket and some thoughts about why it matters, I briefly mention some interesting criminal law nuggets found among the 37 different cases appearing on this. For practitioners who might want a comprehensive list, I did the work and provide it below. (Finally, at the very end, I include a brief correction regarding my July 30th column.)
What is the orders docket?
Twenty-six years ago the Supreme Court established its first official website. In 2010 (still part of the October Term for 2009 or “OT09”), the court took over administration of its site from the executive branch’s Government Printing Office, and divided its published opinions into “Opinions of the Court” and “Opinions Relating to Orders.” This structure continued through a 2017 reorganization of the website and is today the same as it was in 2010.
Merits decisions in argued or summary cases are published in “Opinions of the Court.” The orders docket publishes basically everything else, including but not limited to “emergency” or “interim relief” orders. In fact, by my count, only nine of the 37 separate matters on this term’s orders docket involved emergency stay applications – and almost half of those (four) addressed emergency stays of executions in death penalty cases, not the high publicity “shadow docket” matters that attracted the most media attention.
Rather, the bulk of the “Orders” part of the court’s website publishes opinions written by individual justices to explain why they dissent (or agree with) orders denying review in a case by the full court. Thus, opinions in 28 of the 37 matters on this term’s orders docket were “dissents from denial” (or “statements regarding” denial) of certiorari petitions. (In a death penalty case a justice will often address both the denial of review and denial of a stay of execution in a single opinion.) And it is in the dissents-from-denial opinions on the orders docket that criminal law issues (discussed below) are often addressed (23 of the 37 matters this term).
Opinions published on the orders docket differ significantly from those found on the merits (“Opinions”) docket. They are issued without oral argument or full briefing on the merits, and usually on a faster time frame than full merits opinions. They usually represent individual justices’ views rather than that of a majority of the court. And they are said to carry less precedential weight than full merits opinions (although that distinction appears to have unofficially broken down recently). Nevertheless, opinions on the orders docket often express firm views by the writing justice(s) about significant legal questions.
One final point readers should note: the court denies the vast majority of requests from litigants without any opinion at all by any justice – for example, the recent denial of a petition for rehearing filed by President Donald Trump in the E. Jean Carroll case. Such silent denials are not found on the orders docket, which publishes only written opinions. Instead, these summary denials can be found by parsing the dozens of weekly “Orders” lists that the court files after its internal conferences (and, to make things even more confusing, are published on an entirely different part of the court’s website).
Why the orders docket matters
I have written previously that a full picture of what the justices do in a term requires attention to the orders docket as well as the justices’ merits decisions. Particularly important are opinions explaining why a justice or justices dissent from an order of the majority denying a petition for review (a “dissent from denial” of certiorari is insider shorthand). For the October Term 2025 – which continues until Oct. 5, 2026 – as noted, there have been 37 separate matters listed with opinions on the “Relating to Orders” docket. Of these, 22 were dissents from denial of certiorari, and another seven were “statements” regarding or concurring in such denials. (For technical purists, one matter, Florida v. California and Washington, involved one state suing others, so the dissent was from a denial of leave to file a complaint.)
Adam Feldman and other expert court watchers have long examined dissents from denial as a way of understanding, and presaging, what issues the full court may soon choose to examine. When the full court has denied permission to have a case reviewed, an individual justice may publish a dissent to signal to court observers (including experienced potential Supreme Court petitioners) legal issues one or more justices think are worthy for future review. Such dissents not infrequently (but also not always) blossom into a later merits review of the briefly described legal question. For example, it is not coincidental that Justice Neil Gorsuch’s 10-page dissent from denial of certiorari in Khorrami v. Arizona in 2022 identified the same legal question – does the Constitution require that serious criminal cases be tried by a jury of 12? – that will be given full merits review in Kian v. Florida this coming term. The motivation is sometimes explicit: as Gorsuch wrote in another dissent from denial this term, “I can only hope we will take up another case like [t]his soon.”
Some justices publish repeatedly on the orders docket, in a sense patrolling the borders of the court’s work. Justice Sonia Sotomayor was by far the busiest this term, publishing in 15 different cases; on the other end of the wild card court, Justice Samuel Alito published in five and Thomas in four. Other justices published not at all: Roberts was consistent with his “no dissents” approach this term, as was Barrett with her moderating and merits-focused approach to the court’s work.
Finally, a practice of issuing such official yet individual opinions allows the justices some freedom to express themselves and can give insights into their style and temperament. For example, when the full court denied a stay of execution regarding an intellectually disabled person (Edward Lee Busby), Justice Ketanji Brown Jackson gave full vent to her frustration: “In capital cases, we rarely intervene to preserve life. I cannot understand the Court’s rush to extinguish it.” (Busby was executed that same night.) Meanwhile, when Jackson published a dissent from the court’s order speedily issuing the judgment in the controversial Callais voting rights case, Alito published his unrestrained reaction: “baseless and insulting,” “utterly irresponsible.” Even as the chief justice has said recently that “we are not as much at each other’s throats as you might think,” individual opinions published on the orders docket can sometimes provide insights otherwise.
Criminal law nuggets from the October 2025 Term orders docket
As noted above, at least 23 of the 37 cases listed on the court’s merits docket involved criminal law issues. Eighteen were straight dissents from denial of certiorari; the rest were “statements” explaining disagreement on the merits but acquiescing in the denial of review for other reasons. Alito and Sotomayor appear to pay the most attention to criminal law issues, accounting for opinions in 18 of these matters. Their opinions tend to pull in opposite directions, unsurprising perhaps in light of their decidedly different prior careers and political views. (Alito was a career federal prosecutor; Sotomayor, while also serving as a stateside prosecutor for a few years, was committed to various civil rights organizations.) Their orders opinions tend to “patrol” the court’s criminal law denial decisions, urging further review in similarly opposite directions. In addition, seven matters involved stays of execution in death penalty cases; Sotomayor wrote in all but one of those.
Space does not permit review of every matter (but for practitioners interested in a complete picture, I provide short descriptions for all the criminal law orders opinions below). Here are few notable ones:
- In Smith v. Kind, denying review to a lawsuit alleging inhumane prison conditions, Sotomayor, joined by Justices Elena Kagan and Jackson, called out what she said is the court’s “asymmetrical trend of declining to intervene” when government officers are “wrongly afford[ed]” qualified immunity, “but unflinchingly summarily reversing when” officers have been “wrongly denied” that protection.
- In Danco Laboratories v. Louisiana, a civil matter granting a stay of the U.S. Court of Appeals for the 5th Circuit’s order addressing distribution of mifepristone (a drug that can medically terminate pregnancy), Thomas and Alito dissented and suggested that mailing mifepristone to Louisiana users can violate criminal laws. Oral arguments are scheduled in the 5th Circuit for Sept. 9.
- In United States v. Carter, Alito, joined by Thomas, dissented from denial of the solicitor general’s petition for review of a “reasonable suspicion” ruling in Washington D.C., which Alito says was race-based and creates “special rules for black persons.” Denial of an SG petition in a criminal case is rare.
- In Dershowitz v. CNN, another civil matter with criminal law implications, Thomas (joined by Gorsuch) repeated his calls for the court to review and reverse the actual malice standard of 1964’s New York Times v. Sullivan for defamation. Criminal libel prosecutions could be stimulated if Sullivan were overruled.
- Finally, in another civil matter, Thomas v. Humboldt County, Gorsuch dissented from denial of review, urging that a 1916 precedent holding that the Seventh Amendment’s civil jury trial right does not apply to the states, should be overruled. This continues Gorsuch’s intense focus on jury trial rights in various contexts that I wrote about last summer.
Other criminal law matters on the court’s October 2025 Term orders docket (in addition to the above, and in reverse chronological order. In each the criminal law element is bolded):
- Jones v. United States: Sotomayor concurred in this denial of review, but urged lower courts to “consider carefully” whether the miscarriage of justice principles in Hunter v. United States should apply to waivers of collateral reviews of convictions.
- Grayson v. United States: Alito dissented from a GVR (grant, vacate, and remand) order in a murder prosecution where the government conceded error in applying a “clean hands exception” to the federal wiretapping statute.
- Saldaño v. Texas: Sotomayor, joined by Kagan and Jackson, dissented from denial of review in a death penalty case in which the state of Texas agreed that evidence of intellectual disability should be reviewed but the Texas Court of Criminal Appeals declined to so order.
- Alabama v. Powell: Alito, joined by Thomas, dissented from denial of review in a murder case in which the Alabama court of appeals ruled that the prosecutor had improperly commented on the defendant’s right not to testify.
- Clark v. Mississippi: Sotomayor, while agreeing with the denial of review, addressed the “problematic” Batson standard the Mississippi Supreme Court applied to evaluate an ineffective assistance of counsel claim.
- Lairy v. United States: While concurring in this denial of review because Michael Dewayne Lairy has been released from prison, Sotomayor wrote to note that the government represented that it has a policy of waiving statute of limitations defenses when a person has been sentenced to a term above the statutory maximum.
- Guerrero v. Busby: As mentioned above, Jackson wrote to declaim the court’s “rush to extinguish” life when denying requests for stays of execution in death penalty cases.
- Castro v. Guevara: Sotomayor concurred in this denial of review given changed circumstances but noted a circuit split in the standard of review for findings under the international child abduction convention and repeated her view of a year ago that the court should have granted a stay in this case to preserve the status quo.
- Skinner v. Louisiana: Sotomayor, joined by Jackson, dissented at length from denial of review to Skinner, who had been convicted of murder, when the court had reversed his codefendant (Wearry’s) conviction in 2016 for a Brady exculpatory evidence disclosure violation. According to Sotomayor, Wearry walking free while Skinner remains in prison is not “[e]qual justice under law” as is engraved “on the front of this Court’s building.”
- Reed v. Goertz: Sotomayor, joined by Kagan and Jackson, dissented from denial of review where Texas has refused to DNA test possibly exculpatory evidence.
- Villarreal v. Alaniz: Another qualified immunity case (see Smith v. Kind, discussed above), in which Sotomayor dissented from denial of review regarding the arrest of a “citizen journalist” who frequently examines police conduct in Laredo, Texas.
- Burnett v. United States: Gorsuch dissented from denial of review of the question whether the Sixth Amendment requires a jury trial under a reasonable doubt standard, for re-imprisonment when one has violated federal supervised relief conditions.
- Johnson v. High Desert State Prison: Sotomayor, joined by Jackson, dissented from denial of review of whether indigent prisoners may split the federal filing fee when filing a single lawsuit, on which there is a circuit split.
- Trotter v. Florida: Interestingly, Sotomayor concurred in the denial of a stay of execution and review here but published this “statement” to criticize Florida’s implementation of its execution protocols and the state’s secrecy about it.
- Howell v. Indiana: Jackson dissented from the issuance by the court of a “vexatious litigant” order against an indigent repeat petitioner as “intolerable” for incarcerated persons.
- Trump v. Illinois (quasi criminal): The court denied a stay of a lower court order, ruling that national guard troops may not be deployed unless U.S. military “regular forces” are “unable to execute [federal] law[s].” Justice Brett Kavanaugh filed a concurring opinion while Alito (joined by Thomas) and Gorsuch filed dissenting opinions.
- Davenport v. United States: Sotomayor concurred in denial of review because the petition was untimely but wrote to note that the district judge here was “mistaken” in saying that federal courts are “prohibited from giving a definition of reasonable doubt” to juries. “[I]t may be wise” to not define it in many cases, she stated, but sometimes “it may be appropriate.”
- Hutson v. United States: Alito, joined by Thomas (and Gorsuch – well, kind of) dissented from denial of review “to terminate the longstanding and unlawful prison-building order at the center of this case.”
- Boyd v. Hamm: Sotomayor, joined by Kagan and Jackson, dissented from denial of a stay of execution and review regarding Alabama’s nitrogen hypoxia method of execution. Anthony Boyd was executed later that day, to reports by some of “violent thrashing” and “agonized breaths.”
- Crawford v. Mississippi: Sotomayor, joined by Kagan and Jackson, dissented from denial of a stay of execution and review, in a case where Charles Ray Crawford’s lawyers conceded guilt despite Crawford’s “express instructions not to do so.” Whether the court’s precedent holding that to be ineffective assistance of counsel should apply on collateral (non-direct) review has created a circuit split. Crawford was executed later that same day.
- Humphreys v. Emmons: Sotomayor, joined by Kagan and Jackson, dissented from denial of review of the application of a “no-impeachment rule” to a death penalty case infected by “extreme juror misconduct.”
Correction
I wrote in my June overview of the court’s criminal law term that “Chief Justice Roberts was part of the majority in all 11 pro-defense” decisions. The correct division is actually 10 and one (thanks to law professor Richard Re for pointing this out to me). In Hamm v. Smith there was no opinion for the court – the case was simply dismissed as improvidently granted (a big win for Smith). I overlooked the quiet fact that, 40 pages into the concurring and dissenting opinions, Roberts joined Alito’s dissent. But my point remains: in all of the pro-defense criminal law decisions in which an opinion was assigned (10 cases), Roberts was in the majority and did the assigning.
