Justice Kavanaugh on the Peril of Writing Shadow Docket Opinions

Speaking at the Eighth Circuit Judicial Conference this week, Justice Brett Kavanaugh addressed concerns about the Supreme Court’s failure to issue opinions with “shadow docket” orders. While explanatory opinions could be useful, he explained, rushing out opinions could increase the risk of error.

Bloomberg reports:

Kavanaugh . . . said there can be a “danger” in writing those opinions. He said that if the court has to weigh a party’s likelihood of success on the merits at an earlier stage in litigation, that’s not the same as reviewing their actual success on the merits if the court takes up the case.

“So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that’s not going to reflect the final view,” Kavanaugh said.

Kavanaugh said members of the court have differing thoughts on when to issue opinions for those cases on the so-called shadow docket, or when parties petition the justices for emergency relief on rulings made by lower courts. He said those cases will “get back to us soon enough.”

Adam Liptak of the New York Times reports further:

Justice Kavanaugh said presidents of both parties were to blame. “Executive branches of both parties over the last 20 years have been increasingly trying to issue executive orders and regulations that achieve the policy objectives of the president in power,” he said. Those actions give rise to challenges that can race to the Supreme Court. . . .

Emergency applications present the court with difficult issues, Justice Kavanaugh said.

“What is the status of the new regulation or executive order for the next two years?” he asked. “That itself is a very important question, and that’s the question we often have to decide: Will the new regulation be in effect or not be in effect in the next two years?” . . .

In opening remarks, without referring to Mr. Trump’s attacks on the federal judiciary, Justice Kavanaugh thanked the assembled judges for their service and urged them “to preserve what I think is the crown jewel of our constitutional democracy, which is the independence of the judiciary.”

As Liptak also reports, Justice Elena Kagan made the case for explaining such orders at the Ninth Circuit’s judicial conference last week.

In a similar appearance last week at the Ninth Circuit’s judicial conference, Justice Elena Kagan, who has often dissented from the court’s emergency rulings in favor of President Trump, made the opposite case, saying the majority should do more to explain its reasoning.

“I think as we have done more and more on this emergency docket, there becomes a real responsibility that I think we didn’t recognize when we first started down this road, to explain things better,” Justice Kagan said. “I think that we should hold ourselves, sort of on both sides, to a standard of explaining why we’re doing what we’re doing.”

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