Justice Kagan Urges Caution on Supreme Court's Emergency Docket Use

In a recent interview at New York University's law school, Justice Elena Kagan expressed concerns about the U.S. Supreme Court's increasing reliance on its emergency docket, often referred to as the "shadow docket." This process, which has seen a surge in usage during both the Trump and Biden administrations, allows the court to make swift decisions on pressing issues without the usual deliberative process.

Kagan, who has served on the Supreme Court since 2010, emphasized the importance of thorough consideration in judicial decision-making. She stated, "I don't think we do our best work in this way," highlighting the challenges posed by the rapid nature of emergency docket cases.

The Supreme Court, established in 1789, has undergone significant changes throughout its history. Initially comprising six justices, the court has maintained its current composition of nine members since 1869. This structure allows for diverse perspectives, but also requires careful deliberation on complex legal matters.

Kagan noted that the court now issues decisions in approximately 60 cases annually, a stark contrast to the 1980s when she served as a clerk. This reduction in case volume, coupled with the increased use of the emergency docket, has altered the court's workflow significantly.

The justice provided an example of the potential pitfalls of the shadow docket, referencing a recent case concerning Idaho's abortion ban. In June 2024, the court temporarily allowed abortions in Idaho when women's health was at risk. Kagan admitted, "I thought it was a mistake from the get-go," emphasizing the importance of a comprehensive understanding of cases before accepting them.

The Supreme Court's imposing marble building, completed in 1935, bears the inscription "Equal Justice Under Law." This principle underscores the court's commitment to fairness and impartiality, values that Kagan believes could be reinforced through the implementation of an enforceable ethics code.

In light of recent polls indicating less than 50% public approval of the Supreme Court's performance, Kagan suggested that adopting means to enforce the ethics code established in 2023 could help restore public confidence. This proposal aligns with the court's historical commitment to maintaining the highest standards of judicial conduct.

Kagan also touched on the importance of building relationships among justices, reminiscing about the famous friendship between the late Justices Antonin Scalia and Ruth Bader Ginsburg. While acknowledging the potential benefits of shared interests, such as her recent foray into golf with Chief Justice John Roberts and Justice Brett Kavanaugh, she emphasized that the true measure of success lies in improved decision-making and conversations about court business.

As the Supreme Court continues to navigate its role in the American legal system, Kagan's insights offer a glimpse into the challenges and opportunities facing the institution. With an average tenure of 16 years for justices, the impact of these discussions on the court's practices could be far-reaching, shaping the administration of justice for years to come.

"If it leads to better decision making, if it leads to better conversations ... about the court's business, then it's a fantastic thing. But the proof is in the pudding ... It should not be sufficient for us to say, 'we go to the opera together.'"