Justice Brett M. Kavanaugh said on Thursday that the Supreme Court should be wary of providing detailed explanations for its rulings on emergency applications like those arising from challenges to the Trump administration’s efforts to transform the federal government.
“There can be a risk, in writing the opinion, of a 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,” he said.
The justice made the remarks at the judicial conference of the U.S. Court of Appeals for the Eighth Circuit, held this year in Kansas City, Mo.
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.”
Justice Kavanaugh was interviewed on Thursday by Judge Sarah E. Pitlyk of the Federal District Court in St. Louis, who was a law clerk of his when he was a federal appeals court judge in Washington.
Judge Pitlyk asked the justice for an explanation of the recent spike in emergency orders, which are not the last word in the cases but can resolve them as a practical matter for years while lawsuits wind through the courts.
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.
The Trump administration has filed about 20 emergency applications seeking relief from injunctions issued by federal trial judges in its first six months. That is more than the total number of such applications the Biden administration filed over four years, and far more than the eight applications filed over the 16 years of the George W. Bush and Barack Obama presidencies.
The Supreme Court has ruled in favor of Mr. Trump in a large majority of those cases.
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?”
Justice Kavanaugh, who was appointed by Mr. Trump, said the court had taken various approaches to the applications. In some, as in a case arising from Mr. Trump’s efforts to end birthright citizenship, he said, the court heard arguments and issued extensive opinions. In others, he said, the majority has given a brief account of its rationale.
“I think we’ve written a lot more than we have in the past,” he said, adding that he was a fan of and appreciated “putting some written explanation out there.”
Justice Kavanaugh has issued concurring opinions in some of the cases, sometimes urging his colleagues, without success, to grant immediate review.
Some justices say they pay no attention to public opinion, but Justice Kavanaugh said he was attentive to it.
“We’re public officials who serve the American people,” he said. “It’s not an academic exercise. Most people are not reading our opinions. They’re reading someone else’s descriptions of our opinions. And I think it’s important for maintaining public confidence in the judiciary and the Supreme Court to know how the opinions are being conveyed and received and understood by the American people.”
He added that he tried “to pay attention to what’s going on out there,” within reason.
“There’s no shortage — you might be aware of this — no shortage of commentary about our court,” he said.
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.”