Justice Kagan Throws Shade at Shadow Docket

By now, you might have heard of the “shadow docket.” It's a method the U.S. Supreme Court uses to resolve urgent matters without issuing a full opinion on the legal issues. If you’re a frequent reader at FindLaw, you may have read our various blogs or podcasts on the opinions that snuck by in this ominous-sounding system.

The shadow docket, also known as the emergency docket, refers to a range of decisions made by the Court outside of its regular docket of cases that receive full briefing and oral arguments. These decisions often involve emergency applications, procedural rulings, and other expedited matters that require swift resolution. The term "shadow docket" refers to the often obscure nature of these rulings, including stays of lower court decisions, injunctions, or emergency relief. These decisions are typically issued without detailed opinions or full explanations since time is often of the essence.

This, of course, raises concerns about transparency and accountability in the judicial process. The shadow docket allows the Court to address urgent issues quickly, but it also means that significant legal determinations can be made with less public scrutiny and deliberation. Cases ranging from abortion rights to executions to eviction moratoriums to voting rights have all been decided in the dark by the highest court in the land. If you think those are some pretty heavy and contentious topics, you’re not alone.

The fact that shadow docket rulings can and do have such far-reaching effects and dire consequences for Americans is all the more reason why a lot of people are skeptical of it. It’s gained increased attention and controversy in recent years, particularly due to its growing use in high-profile cases involving significant legal and political issues. Critics argue that this process lacks transparency and undermines the court's traditional deliberative approach, while supporters contend that it allows the court to respond swiftly to urgent matters.

Kagan Speaks Out Against Shadow Docket

The shadow docket's impact on constitutional law and the court's public perception has become a subject of debate among legal scholars, politicians, and the general public. But what about the Justices themselves? Surely, you’d think, if they are the ones using the system, they would endorse it? Not necessarily, it would seem – at least not for Justice Kagan.

On Monday, Justice Elena Kagan gave an interview with a professor at New York University's law school. She discussed the challenges and drawbacks of the U.S. Supreme Court's reliance on the emergency docket. She expressed concerns that the Court does not perform its best work when hurriedly addressing cases through the shadow docket.

Kagan pointed out that the shadow docket process lacks the normal deliberative procedures, such as public oral arguments and full written decisions, which are essential for thorough judicial review. She emphasized that thoughtful lower court opinions, which reflect a comprehensive review of factual and legal issues, actually help the Supreme Court in its decision-making process. The shadow docket often bypasses these valuable lower court contributions.

The Moyle Case

Justice Kagan pointed out the potential pitfalls of making decisions without a comprehensive understanding of the cases by citing the recent example of Moyle v. United States. This was a case from this past June that resulted in a lot of commotion over what seems to have been a SCOTUS SNAFU.

The issue in Moyle was whether Idaho violated federal law in barring hospitals from performing emergency abortions for women whose pregnancies present a threat to their health (and possibly life) and compromises their future fertility. In its original decision, SCOTUS temporarily blocked what would have been a near-total ban on abortions in Idaho. But shortly thereafter, the Court essentially took it back, concluding that it should not have agreed to consider the case in the first place.

Justice Kagan points to Moyle as a reminder of the things that can go wrong when cases are accepted without a good understanding of what they entail. In her concurring opinion, she noted that the District Court had issued a preliminary injunction to prevent Idaho from enforcing its restrictive abortion law, allowing women to obtain necessary abortions in medical emergencies.

However, when the Ninth Circuit declined to stay the injunction, Idaho sought emergency relief from the Supreme Court, which stayed the injunction and granted certiorari. Kagan criticized this intervention, highlighting the immediate negative impact on women's health in Idaho, where hospitals had to airlift pregnant women out of the state for necessary medical care.

The justice argued that Idaho's interpretation of EMTALA, which does not require hospitals to offer abortions to prevent serious health harms, was unlikely to succeed on the merits. She emphasized that EMTALA's requirement to provide stabilizing treatment includes abortions when necessary, and the statute's references to protecting an "unborn child" do not alter this obligation when a woman's life or health is at risk. In Justice Kagan’s opinion, the case should have proceeded in the lower courts, with the preliminary injunction in place to ensure women receive necessary medical care.

Solutions Not Forthcoming

Solutions to the shadow docket issue aren’t so clear-cut, however. Justice Kagan has suggested that the Supreme Court should adopt a means to enforce the ethics code it adopted last year to help bolster public confidence in the court. She also touched on the importance of shared interests among justices, such as her recent interest in golf, to potentially improve decision-making and conversations about the court's business.

Justice Kagan also noted that the use of the shadow docket has increased significantly since the Trump administration and continues to be heavily utilized during the Biden administration. This increased reliance means the court spends a lot more time on these hurried cases, which may not be beneficial. While Kagan isn’t alone in her problematization of the use of the SCOTUS emergency docket, it will probably be a long time before any formal action is taken to reduce the practice.

Related Resources:

• Biden Proposes Term Limits for SCOTUS (FindLaw's Federal Courts)
• Supreme Court Roundup (FindLaw's Federal Courts)
• Hospitals Are Denying Lifesaving Treatment for Ectopic Pregnancies. Is That Legal? (FindLaw's Courtside)