Supreme Court Justices Brett Kavanaugh and Clarence Thomas have voiced their worries regarding the increasing demands of the Supreme Court's emergency, or shadow, docket. The justices claim that this puts them under heavy pressure to issue fast rulings on contentious affairs prior to fully comprehending all facts at hand.
In a recent speech at a US Circuit Court of Appeals for the Fifth Circuit conference in Austin, Texas, Justice Kavanaugh described the challenges of dealing with the rapidly-evolving nature of emergency cases. “This puts pressure on us,” he admitted. “We’re appellate judges; we don’t like making snap decisions or decisions without lots of briefs or lots of lower court opinions. It’s a challenge for us. I think we’re dealing with it as best as we can in an imperfect situation.”
The shadow docket substantially diverges from the merits docket due to its nature. Here, justices are tasked with deciding whether a disputed law or regulation should be implemented even before the entire case is comprehensively briefed or argued in court.
Often, the Supreme Court is asked to hastily jump into disputes, whether it’s a bid to keep former President Donald Trump off the Colorado primary ballot or challenges to Idaho's abortion ban. Or even when it refuses to intervene in quarrels between the Biden administration and Texas concerning a state law permitting official apprehension and deportation of people who enter the country illegally.
However, the increasing load of emergency cases is leading to burnout among justices and reduced output in other arenas. “It occupies a lot of time,” Justice Kavanaugh said, further indicating that the need to address shadow docket issues is hindering the court from writing more comprehensive opinions in merits cases.
Justice Thomas, speaking in line with Justice Kavanaugh at the Eleventh Circuit conference in Point Clear, Alabama, expressed that the more frequent emergency demands placed upon the court adversely impact their process.
Moreover, there are prevalent concerns about universal injunctions, orders emerging from single district judges with nationwide impact that sometimes fuel shadow docket filings, as well as forum shopping, where parties aim to find a particular venue regarded as most favorable.
Just a week prior, US Solicitor General Elizabeth Prelogar complained of the shadow docket overburdening her office. As a result, the Justice Department has requested two additional attorneys in its 2024 budget, acknowledging its expanded workload and increased need for experience in emergency matters.
In light of this growing legal conundrum, among the Supreme Court justices, past and present, the perception is essentially unanimous – the shadow docket’s expansion is pressuring them to work harder than ever before, often at the expense of thoroughness and accuracy.