Supreme Court Justice Brett Kavanaugh has recently articulated a position supporting the issuance of emergency rulings without accompanying explanations. This stance has intensified the ongoing debate over the Court’s use of the “shadow docket,” a term referring to decisions made without full briefing or oral argument.
In his concurrence in Labrador v. Poe, Justice Kavanaugh emphasized that providing written opinions during the preliminary stages of a case could inadvertently influence lower courts and hinder the natural development of legal issues. He stated, “A written opinion by this Court assessing likelihood of success on the merits at a preliminary stage can create a lock-in effect because of the opinion’s potential vertical precedential effect… which can thereby predetermine the case’s outcome in the proceedings in the lower courts and hamper percolation across other lower courts on the underlying merits question.” Read more
This perspective has drawn criticism from some of his colleagues. Justice Elena Kagan, for instance, has expressed concern over the lack of transparency in the Court’s emergency decisions. She remarked, “As we have done more and more on this emergency docket, there becomes a real responsibility… to explain things better.” Read more
The increasing reliance on the shadow docket has also been scrutinized by legal scholars. Professor Stephen Vladeck of Georgetown University noted that the Court’s interventions in emergency applications have allowed justices to effect significant changes without altering underlying legal principles, often without providing explanations. Read more
As the Supreme Court continues to navigate complex and time-sensitive cases, the balance between expediency and transparency remains a contentious issue, with implications for the Court’s credibility and the development of legal doctrine.