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

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.

Speaking to the Ninth Circuit Judicial Conference in California on Thursday, Justice Kagan said the “need to explain things” is the “most important” issue for the high court.

“What we started doing when we started doing these things is just issuing orders,” said the justice, an Obama appointee. “But I think that that’s not the right way to approach it, because the orders themselves don’t tell anybody anything about why we’ve done what we’ve done.”

The Republican-led Congress has frequently sided with the Trump administration in requesting emergency orders from the conservative-majority court via the shadow docket. Most orders are brief and do not explain why the justices have issued them.

Under the shadow docket, the justices take up an expedited request and decide to uphold or block a lower court ruling without holding a hearing.

Justice Kagan referred to an emergency order the justices issued this month on President Trump’s move to dismantle the Department of Education: Without explanation, the court granted the administration’s request to pause a district court judge’s injunction against the move while a challenge to the firing of federal employees played out in lower court.

The court’s three Democratic appointees dissented.

“Only Congress has the power to abolish the Department,” said Justice Sonia Sotomayor, an Obama appointee.

Justice Kagan said the court’s majority did not explain how the district court had erred, which leaves lower courts and the public confused about why the high court granted the administration’s request.

She noted that the key issue involved in the Education Department matter was not the legality of dismantling the agency but procedural matters like jurisdiction and legal standing (a court’s determination that a party has suffered an injury sufficient to sue).

“A court is supposed to explain things,” Justice Kagan said. “That’s what courts do. They’re supposed to explain things to litigants. They’re supposed to explain things to the public generally.”

Critics of the Trump agenda have complained about the administration’s use of emergency appeals to the justices after a lower court issued an injunction against one of the president’s orders.

According to The Hill, the Trump Department of Justice has filed 21 emergency requests with the high court in the past six months, compared to a total of 19 from the Biden Justice Department over four years.

The Trump Justice Department has found success with this maneuver, as it has faced more than 300 lawsuits in its first six months.