During the first six months of President Donald Trump’s second term, the Supreme Court has frequently issued emergency docket (also known as the “shadow docket”) rulings that have usually gone Trump’s way. And at least one justice is admitting that the shadow docket is not popular even among his own colleagues.
According to a Thursday evening report in the Daily Beast, Justice Brett Kavanaugh — who Trump appointed to the Court in 2018 – spoke about the Roberts Court’s shadow docket rulings during a recent conference in Missouri. Kavanaugh acknowledged that the shadow docket’s brief decisions that rarely offer details on why the justices ruled the way they did is a divisive topic among the nine members of the High Court.
“I think there are different views among members of the court about when to do it and when not,” he said. “We’re nine independent people.”
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“There can be a risk in writing the opinion of lock-in effect – of making a snap judgment and putting it in writing, in the written opinion, that is not going to reflect the final view,” he added.
The Brennan Center for Justice explained that while the Supreme Court’s “merits docket” happens during its regularly scheduled term, and has decisions that are thoroughly explained in detail, the shadow docket decisions usually happen between terms, and come with little to no explanation. And while merits docket cases are accompanied by briefings publicly submitted by both plaintiffs and respondents and have oral arguments, shadow docket decisions have neither briefings nor hearings, and can sometimes be handed down in the middle of the night.
One recent controversial shadow docket ruling — in which the Court’s six conservatives voted as a united bloc — allowed the Trump administration to hollow out the Department of Education. That ruling overturned a previous decision by a lower court judge, and gave no reasoning for its decision. And after another 6-3 shadow docket ruling allowing Trump to fire three Democratic appointees on the National Labor Relations Board and the Merit System Protection Board, Justice Elena Kagan (appointed by former President Barack Obama) slammed both that decision and the Roberts Court’s reliance on the shadow docket.
“Once again, this Court uses its emergency docket to destroy the independence of an independent agency, as established by Congress,” Kagan said.
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