Justice Kavanaugh defends Supreme Court's terse emergency docket orders

CNN

5 days ago

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Justice Brett Kavanaugh on Thursday defended the way the Supreme Court is handling the flood of emergency cases that has reached its docket during President Donald Trump's administration, pushing back on mounting criticism that the court is often resolving those disputes with little to no explanation.
Kavanaugh's remarks to a group of judges and lawyers meeting in Kansas City, Missouri, came as the court has faced growing criticism for issuing emergency orders with so little explanation that similar controversies boomerang back weeks later.
Most of the court's emergency cases have involved policies pursued by Trump, including on immigration and the firing of leaders at independent federal agencies.
'We have written a lot more than we've written in the past on the interim orders docket,' Kavanaugh said, noting the court's blockbuster opinion last month that limited the use of nationwide court orders blocking the president's policies. 'We've been doing certainly more written opinions on the interim orders docket than we've done in the past.'
But there's a 'danger,' Kavanaugh said, in writing too much.
Those emergency cases are not final decisions on the legal questions raised in the cases. Writing too much, Kavanaugh suggested, can prematurely give away how a majority of justices are thinking about those issues before the case is resolved.
'There can be a risk in writing the opinion of lock-in effect – of making a snap judgment and putting it in writing, in the written opinion, that is not going to reflect the final view,' Kavanaugh told a conference hosted by the 8th US Circuit Court of Appeals.
Kavanaugh's comments came just days after Justice Elena Kagan – a member of the court's liberal wing – appeared to embrace a conflicting view. She suggested that the high court could do more to 'explain things better' so that lower court judges and the public understand clearly what the Supreme Court is deciding.
'Courts are supposed to explain things,' Kagan said to a separate judicial conference in California. 'As we have done more and more on this emergency docket there becomes a real responsibility, that I think we didn't recognize when we first started down this road, to explain things better.'
The court's emergency docket, which some have described as its 'shadow docket,' is separate from its merits docket, in which the justices hear oral arguments and have the benefit of several rounds of written briefing. Emergency docket cases often involve one round of briefing, no oral argument and rarely result in full opinions.
Earlier this month, for instance, the court allowed Trump to proceed with his plan to carry out mass layoffs at the Department of Education. That decision was handled with a one-paragraph order that included only boilerplate language.
At times, the lack of clarity has meant the justices must return to the same issue weeks later. In May, the court ruled that Trump didn't have to rehire senior labor officials at independent agencies, despite a 1935 precedent that allows Congress to separate those agencies from presidential intervention. In that the case, the court did provide a brief opinion but it didn't address the 1935 case.
And so earlier this month the justices were asked to resolve a substantially similar case involving members of the Consumer Product Safety Commission that Trump had fired. Lower courts decided there was nothing in the Supreme Court's earlier decision that overturned the 1935 precedent, and so they backed the fired board members.
The Supreme Court ultimately reversed that decision over dissent from the court's three liberals.
Criticism of the court's emergency docket – Kavanaugh repeatedly used the term 'interim orders docket' instead – crops every few years and has come to the fore again recently amid a deluge of cases involving the Trump administration.
The court has repeatedly sided with Trump, allowing him to fire board members at agencies, bar transgender American from serving in the military and end programs that let certain migrants to remain in the United States.
Presidents, Kavanaugh said in explaining the rise of emergency cases, 'run for office on getting things done.'
'And I think presidents, whether it's President Obama – I think the phrase was 'pen and phone' – or President Biden or President Trump, have really done more of that, and those get challenged pretty quickly in court,' said Kavanaugh, who was named to high court by Trump during his first term.
Kavanaugh said that the court has taken steps to address some of the criticism that has popped up in recent years about its emergency docket. It has, for instance, held oral arguments in some of those cases. Most notably, the court heard arguments this year over Trump's executive order on birthright citizenship and lower court efforts to halt that policy on a nationwide basis. On the last day of its term, a conservative majority limited the ability of lower courts to stop Trump and future presidents.
In that case, the court handed down a lengthy opinion written by Justice Amy Coney Barrett with concurrence and dissents. Kavanaugh wrote a notable concurrence in that case that suggested the Supreme Court has a responsibility to resolve emergency cases to ensure 'nationally uniform interim legal status.'
What the decision will mean for Trump's birthright citizenship policy is still being worked out. Trump's policy has been blocked by lower courts again, using different methods that were not at issue in the Supreme Court case.
Kavanaugh began his remarks on Thursday by stressing the importance of an independent federal judiciary, though he made no mention of Trump's threats against lower-court judges. Just this week, the Department of Justice filed a misconduct complaint against US District Court Judge James Boasberg because, it said, he sought to 'improperly influence' Chief Justice John Roberts about the dangers of the Trump administration triggering a constitutional crisis by ignoring court orders.
Kavanaugh described the independent federal judiciary as the 'crown jewel of our constitutional democracy.'
'Bench and bar together have a role in preserving the independence of the judiciary, in maintaining its strength, in maintaining a consistent, principled rule of law throughout the United States,' Kavanaugh said.