Justice Elena Kagan said Thursday that the Supreme Court was shortchanging the public and lower court judges by failing to explain its reasoning in rulings on cases that come before the court on an emergency basis, including challenges to the Trump administration’s efforts to transform the federal government.
“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.”
Even two or three pages of explanation, she said, would be helpful — “to just sort of say, Here’s the basic issue, the basic problem that we see. Go fix it.”
Her comments came during an appearance in Monterey at an annual meeting of federal judges and lawyers from the Ninth Circuit.
Speaking in conversation with a federal judge and a lawyer, Justice Kagan focused on the emergency docket and her concerns that the justices’ failure to provide the court’s reasoning in cases could make it difficult for lower court judges to understand how to apply the decisions and for the public to understand the court’s reasoning.
In recent months, the Supreme Court has been bombarded with emergency applications, many of them focused on Trump administration policies, including efforts to downsize the federal government and to remove temporary immigration protections for hundreds of thousands of people, as well as President Trump’s decisions to remove heads of government agencies.
Many of these applications have challenged temporary orders issued by lower court judges, and challenges to those orders have zoomed up to the justices on the emergency docket.
“I think we should be cautious about acting on the emergency docket,” Justice Kagan said. “Sometimes we have to, but I think we should be cautious.”
Decisions on that docket, known by critics as the shadow docket, are typically not fully briefed and argued before the court. Often, emergency docket decisions do not provide any description of the court’s reasoning, leaving lower court judges to decipher the meaning.
According to a tally by Stephen I. Vladeck, a law professor at Georgetown and the author of a book about the court’s emergency work called “The Shadow Docket,” the court has granted emergency relief to the Trump administration seven times without any explanation at all in recent months.
Justice Kagan explained that, unlike with standard cases, the justices do not typically meet in person and discuss how to rule on emergency applications. She said that they fashioned their approach as they began to see an increasing number of emergency applications, but she said it was time for the court to begin providing more of an explanation because “the orders themselves don’t tell anybody anything about why we’ve done what we’ve done.”
Justice Kagan pointed to a decision by the court last week that cleared the way for the Trump administration to make significant cuts to the Education Department. She and the other two liberal justices — Sonia Sotomayor and Ketanji Brown Jackson — dissented in that case, explaining their reasoning in a sharply worded 19-page dissent. But the court’s order in that case, as in many emergency decisions, was unsigned and gave no reasoning.
She said the lower court that had issued the decision to block the president’s plans to downsize the department now had to guess how and why the Supreme Court made its decision and figure out how to apply it.
“What’s that court supposed to think?” she said.
Justice Kagan’s focus on the trial and appeals court judges was a theme throughout her interview, in which she also addressed rising threats against judges.
She did not mention President Trump or his allies, who have verbally attacked federal trial judges who have made decisions blocking some of the president’s policies. She also explained that some of her conservative colleagues at the court faced targeted attacks after the court’s decision to overturn Roe v. Wade.
“Some of my colleagues — my colleagues on the majority side — were confronted with protests outside their houses, including houses with children in them, and a gunman appeared at one of my colleague’s houses, and that is scary stuff,” Justice Kagan said. “I think now there are a number of judges sort of all up and down the judicial hierarchy that are being confronted with the same.”
She condemned the threats on judges, saying that “vilifying judges in that way is a step beyond.”
She urged lower court judges to continue their day-to-day work, unbowed by any efforts to undermine the rule of law.
“The response to perceived lawlessness of any kind is law,” Justice Kagan said. “The way an independent judiciary should counter assaults on an independent judiciary is to act in the sorts of ways that judges are required to act.”