The Supreme Court has made a concerted effort to do more to explain decisions on its interim or “shadow” docket, justices told Congress on Tuesday, saying they’re responding to public demands for more transparency.
The interim or emergency docket is the name justices give to cases that rush to the court during a term, usually on preliminary issues, and get rulings without going through full briefing and oral argument.
Justice Elena Kagan said they’ve seen a major surge in those kinds of cases and had struggled with how to deal with them. In particular, the court — and the broader legal community — debated what sorts of opinions the justices should issue to explain their thinking on cases that are only partially argued.
Justice Kagan said the court has seemed to settle on explaining more.
“I think that as we’ve gotten more experienced in these constant requests that are coming to us for emergency relief that we better recognize that at least some times there is need for additional information,” the Obama appointee told Congress.
She and Justice Amy Coney Barrett were testifying on the high court’s 2027 budget request, but lawmakers were particularly interested in the growth of cases on the emergency docket.
Justice Barrett said the court has discretion in deciding to hear cases on its regular docket but has to make some sort of decision on the emergency docket.
“On the emergency docket it’s like, you just take all comers, and you have to grant or deny these motions as filed,” said Justice Barrett, a Trump appointee.
Justice Kagan said there are disagreements within the court, and justices “talk about this all the time.”
She said they’ve tried to create a middle ground where, on major cases from the emergency docket, they will still request broader briefing and schedule oral argument.
The court did that this term in a case challenging President Trump’s attempt to fire Lisa Cook, a Democratic appointee to the Federal Reserve Board.
The case reached the justices on an interim request by the White House to allow the firing to take effect while the case plays out more broadly in lower courts.
Last month, the justices rejected Mr. Trump’s position, finding he didn’t give Ms. Cook enough opportunity to challenge her for-cause removal.
“Over time we have at least tried to do better in important cases in ensuring we have some degree of regular-ish process,” Justice Kagan said.
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