US Supreme Court’s Kagan: Emergency Docket Doesn’t Reflect Court’s Best Work, Reuters Reports

Justice Kagan Calls for Less Rush in Supreme Court’s Emergency Cases

By Jonathan Stempel

NEW YORK – Justice Elena Kagan expressed her belief that the U.S. Supreme Court would benefit from taking more time to consider cases on its emergency docket.

During a recent hour-long interview at New York University’s law school, Kagan acknowledged, "It’s a very hard problem" and emphasized that the justices often do not perform at their best when hastily addressing matters.

The emergency docket, commonly referred to as the "shadow docket," is used for urgent issues that require quick resolution, often emerging after lower courts issue nationwide rulings. This process has increasingly been adopted by justices to decide a variety of cases without the typical thorough deliberation, public oral arguments, or comprehensive written opinions.

Kagan, who has been on the court since 2010 and is part of its liberal wing, pointed out that the court now issues decisions in about 60 cases annually, which is significantly lower than the average in the 1980s, when she was a clerk. However, she noted that the amount of time devoted to the shadow docket has considerably increased.

She remarked that the use of the emergency process began to rise during the Trump administration, as the U.S. solicitor general felt compelled to act quickly. This trend has continued under the Biden administration. "It’s a symmetric problem: it doesn’t really matter who’s president," she stated, highlighting the growing number of litigants, both governmental and non-governmental, seeking the court’s attention.

Kagan argued that lower court rulings that involve careful examination of facts and legal issues are beneficial for the Supreme Court’s work. An example she mentioned involved a case on Idaho’s near-total abortion ban, where the Supreme Court temporarily allowed abortions when a woman’s health was at risk, restoring a lower court’s decision against the ban. A majority of justices ultimately agreed that the case should not have been taken, a view Kagan supported, stating, "I thought it was a mistake from the get-go."

She pointed out that such situations serve as reminders of the potential pitfalls of accepting cases without a clear understanding of the issues at hand. Kagan also proposed that the court should establish a method to enforce the ethics code it adopted last year, which could enhance public trust in the institution.

Polls indicate that fewer than half of Americans endorse the Supreme Court’s performance, highlighting concerns about its perceived legitimacy.

In a discussion about camaraderie among justices, Kagan reflected on the friendship between the late Justices Antonin Scalia and Ruth Bader Ginsburg, who, despite their ideological differences, found common ground through their shared love of opera. When asked if such interests could help bridge divides on the current bench, Kagan mentioned her recent interest in golf and conversations about the sport with Chief Justice John Roberts and Justice Brett Kavanaugh, both of whom are part of the court’s conservative wing.

She concluded by suggesting that while socializing can enhance decision-making and discussions, it should not be viewed as a substitute for the substantive work of the court. "The proof is in the pudding," she said, emphasizing the need for more than just shared interests to ensure effective governance.