In a candid discussion, U.S. Supreme Court Justice Elena Kagan has expressed concerns about the court’s reliance on its emergency docket, often referred to as the “shadow docket.” Speaking at a New York University law school event, Kagan highlighted the pitfalls of this expedited process, which she believes detracts from the court’s ability to deliver its best work.
The shadow docket allows the Supreme Court to address urgent and controversial issues without the usual thorough deliberation, public oral arguments, or detailed written opinions. This practice has become more frequent over recent years, notably during both the Trump and Biden administrations.
Kagan, who has served on the bench since 2010, noted that while the court now resolves roughly 60 cases annually—down from over 100 in the 1980s—the shadow docket has seen a marked increase. She emphasized that the court’s heavy reliance on this method undermines its traditional deliberative process.
Reflecting on specific cases, Kagan pointed to the court’s intervention in Idaho’s abortion ban as a case in point. She expressed regret over the court’s decision to hear the case from the shadow docket, suggesting it was a misstep due to insufficient understanding of the case’s complexities.
To address these issues, Kagan proposed enhancing the enforcement of the court’s recently adopted ethics code. She believes that strengthening ethical standards could improve public trust in the judiciary, which has seen diminishing approval ratings.
In a lighter moment, Kagan touched on her recent interest in golf, sharing that she has discussed the sport with Chief Justice John Roberts and Justice Brett Kavanaugh. While she acknowledged the potential for such shared interests to foster better discussions, she emphasized that the true test of improvement lies in the court’s decision-making process.
