The shadow docket that has a Supreme Court justice complaining

Justice Elena Kagan has complained about the Supreme Court’s issuance of emergency orders on the court’s so-called shadow docket, which does not require full briefings or oral arguments. Here’s what you need to know about the Supreme Court shadow docket criticism:

Kagan’s judicial conference remarks

Obama appointee emphasizes need for court explanations:

• Justice Kagan spoke to Ninth Circuit Judicial Conference in California on Thursday
• Said “need to explain things” is “most important” issue for high court
• “What we started doing when we started doing these things is just issuing orders”
• “That’s not the right way to approach it” according to Kagan

The shadow docket process

Emergency orders lack full briefings and explanations:

• Shadow docket does not require full briefings or oral arguments
• Justices take up expedited request and decide to uphold or block lower court ruling
• Most orders are brief and do not explain why justices issued them
• Process does not hold hearing before deciding

The Education Department example

Kagan cites specific case without explanation:

• Court granted administration’s request to pause district court injunction
• Injunction was against Trump’s move to dismantle Department of Education
• Emergency order issued this month while challenge played out in lower court
• Court’s three Democratic appointees dissented from decision

Sotomayor’s dissent

Fellow Obama appointee objects to Education dismantling:

• “Only Congress has the power to abolish the Department”
• Justice Sonia Sotomayor made statement in dissent
• Sotomayor is Obama appointee like Kagan
• Dissent highlighted constitutional separation of powers

Kagan’s confusion argument

Justice says lack of explanation creates problems:

• Court’s majority did not explain how district court had erred
• Leaves lower courts and public confused about high court’s reasoning
• Key issue involved procedural matters like jurisdiction and legal standing
• Not about legality of dismantling agency itself

The court’s duty to explain

Kagan emphasizes judicial responsibility:

• “A court is supposed to explain things. That’s what courts do”
• “They’re supposed to explain things to litigants”
• “They’re supposed to explain things to the public generally”
• Orders themselves “don’t tell anybody anything about why we’ve done what we’ve done”

Trump administration’s strategy

Republican-led Congress frequently requests emergency orders:

• Congress has frequently sided with Trump administration in requesting emergency orders
• Requests made via shadow docket to conservative-majority court
• Critics complain about administration’s use of emergency appeals
• Strategy used after lower court issues injunction against president’s orders

The statistical comparison

Trump DOJ files more emergency requests than Biden:

• Trump Department of Justice filed 21 emergency requests in past six months
• Biden Justice Department filed total of 19 over four years
• Trump administration has faced more than 300 lawsuits in first six months
• Trump Justice Department has found success with emergency appeal strategy

The shadow docket outcomes

Court has allowed various Trump policies to proceed:

• Justices allowed Trump to remove legal protections for roughly one million illegal immigrants
• Permitted firing of thousands of federal employees
• Allowed removal of transgender military members
• Permitted firing of heads of independent agencies

Read more:

• Justice Elena Kagan complains about Supreme Court’s emergency orders on shadow docket