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At the heart of the Kantor-Liptak story are seven previously confidential memos leaked to the reporters, most likely by someone close to Justice Sonia Sotomayor, concerning the Supreme Court’s landmark 2022 decision in West Virginia v. Environmental Protection Agency, which found that President Barack Obama’s Clean Power Plan exceeded the authority granted to him by the Clean Air Act. The memos in question, however, are from 2016, and they show the justices deliberating over whether the court should issue an order preventing the EPA from implementing the regulations in dispute while the litigation moved through the court system.

Kantor and Liptak claim the court’s subsequent Feb. 9, 2016, order granting the stay was a “sharp and lasting break” from how the Supreme Court decided cases and marked “the birth” of what the New York Times editorial board has previously condemned as the “shadow docket.”

Kantor and Liptak go on to attack Roberts as “impatient,” “angry,” “irritated,” and “testy,” going so far as to portray him as acting out of personal animus toward Obama because Obama had voted against Roberts’s confirmation when he was a senator. Roberts “acted as a bulldozer” to create this new shadow docket system, Kantor and Liptak claim, which the court has since used to grant President Donald Trump “more than 20 key victories on issues from immigration to agency power.”

None of this is true. The Feb. 9, 2016, order was far from the first time the court had issued injunctive relief without formal argument and briefing, nor was it the first time a presidential initiative had been halted in such a way.

Roberts drove the discussion over the Feb. 9 order because that is his job as chief justice. He also had recently cast the deciding vote to save Obamacare, hardly the act of a justice nursing a petty grudge.

More importantly, Kantor and Liptak completely ignore the times the court sided with former President Joe Biden on temporary injunctive relief and the times it ruled against Trump. The reason for excluding these cases is obvious: They would completely undermine the Kantor-Liptak narrative that the supposed Roberts shadow docket was a tool conservative justices created to advance their partisan agenda.

Since its founding, the Supreme Court has decided major disputes through its regular docket: reviewing briefs, hearing oral arguments, and issuing written opinions and dissents explaining its reasoning. Today, it still handles about 60 to 70 cases this way each year.

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But most Supreme Court actions are far more routine. The justices rule on thousands of motions and petitions each year without oral argument or written opinions, including brief extensions, filing deadlines, and petitions for certiorari.

Some of these orders can have huge consequences, as Kantor and Liptak admit in passing, noting, “To be sure, the court sometimes granted emergency applications from death row inmates and in fast-moving election disputes.” But, they continue, “the court had never intervened on an emergency basis to shut down a major presidential initiative.”

This is simply false.

On Dec. 31, 2013, three years before the court’s stay against the Clean Power Plan, the court issued an order preventing the Department of Health and Human Services from implementing its contraception mandate against the Little Sisters of the Poor. Like the Clean Power Plan order, the Little Sisters order was every bit an intervention by the court on an emergency basis to halt a major presidential initiative.

The reasoning behind both orders was identical. The fines HHS was about to enforce against the Little Sisters of the Poor were so immense that they would have bankrupted the nuns out of existence. Then, when the nuns finally got their day in court, the issue would have been moot because there would have been no plaintiff left to challenge the legality of the contraception mandate.

Similarly, the EPA’s proposed regulations were so burdensome that power plants would have been forced to begin compliance immediately, even as their legal challenge was still pending. Then, when the power plants finally got their day in court, they would already have functionally complied with the regulations, so the EPA would not have cared much if it lost.

If this sounds outlandish, it is exactly what happened in Michigan v. EPA. In 2012, the Obama EPA issued new mercury regulations on power plants. The power plants sued to stop the regulations but were not granted a stay. They then undertook the investments necessary to comply with the regulation they were fighting in court. Even though the power plants eventually won, the EPA bragged that it did not matter because the plants had already made the investments necessary to comply.

In other words, without a stay of the government’s new regulation, both the Little Sisters of the Poor and the power plants would suffer “irreparable harm,” the legal standard a party must meet to obtain injunctive relief.

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And the Little Sisters of the Poor were not the only plaintiffs to obtain injunctive relief against the contraception mandate. Wheaton College was also awarded a stay in 2014, just as the Little Sisters of the Poor had been in 2013.

In fact, it was in reaction to these 2013 and 2014 cases that University of Chicago law professor William Baude published a law review article in 2015, coining the term “shadow docket.”

How could Baude have written a 2015 law review article about a “shadow docket” that the New York Times claims did not exist until 2016?

The answer is that Kantor and Liptak are full of it. And their misleading account does not end there.

Kantor and Liptak assert that the court has handed Trump “more than 20 key victories on issues from immigration to agency power” through the shadow docket. It is true that Trump has had his share of shadow docket wins. But he has also had shadow docket losses. In his first term, the Supreme Court allowed lower court stays to remain in place against his “Muslim travel ban,” his Medicaid work requirement regulations, and his sanctuary city funding restrictions. In his second term, the court has stopped Trump’s use of the Alien Enemies Act, the federalization of the Illinois National Guard, and the removal of a Federal Reserve governor.

Kantor and Liptak mention none of these cases. Nor do they mention Biden’s shadow docket wins, allowing the continued sale of abortion pills or the implementation of his ghost gun ban.

The reality is that presidents from both parties are purposefully pushing the boundaries of executive power further than ever before. Obama even had a name for this practice. He called it his “pen and phone” strategy, and it was the centerpiece of his 2014 State of the Union address. The aforementioned Clean Power Plan, Obama’s failed Deferred Action for Parents of Americans immigration program, and his transgender Title IX education guidance were all part of this push.

As long as presidents of both parties keep stretching executive power to bypass Congress, those affected by their actions will keep suing in federal court. Some district judges will side with the plaintiffs and issue injunctive relief, and the Supreme Court will then have to decide whether the policy can take effect or must remain on hold while litigation continues. There is no avoiding that reality. Someone has to make the call, and the Supreme Court is the institution best suited, and most legitimate, to do it.

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But a story about a Supreme Court struggling to deal with an executive branch that increasingly asserts power over a legislative branch that fails to do its job is not the story Kantor and Liptak want to tell. They most likely do not want their narrative to get a justice killed, which almost happened to Kavanaugh. But they do want to undermine the legitimacy of the Supreme Court and lay the groundwork for a future Democratic president to pack the court and undo the current conservative majority.

And as their “birth of the shadow docket” story shows, they are willing to say almost anything to accomplish that objective.