Supreme Court’s liberals see dash of progress on emergency appeals, or ‘shadow docket’

The Supreme Court’s liberal justices keep dissenting, but they also are seeing some progress on one front as the Trump administration floods the court with emergency appeals.

During recent talks to judges and law students, Justices Elena Kagan and Ketanji Brown Jackson both welcomed their colleagues’ increasing willingness to pen opinions publicly explaining their fast-track decisions.

“I think it is a good and positive development,” Jackson said during a Thursday lecture at the University of the District of Columbia’s law school.

“Because now, the public and also lower courts, who are charged with responsibility of understanding what the court is doing and applying to a certain degree the court’s principles in future cases,” she continued, “really need some way to go about doing that.”

“And it was not possible before in a world in which the court was not providing any explanation.”

The Supreme Court’s emergency docket enables applicants to seek immediate relief from the justices in pending lawsuits. Many are last-ditch attempts to stave off imminent executions, but in recent years, the court has increasingly been asked to weigh in on hot-button issues.

The docket has become so controversial that court watchers can’t even agree on what to call it. Critics often dub it the “shadow docket” for the lack of explanations.

Those fast-moving cases have erupted during the second Trump administration. This week, Solicitor General D. John Sauer filed the administration’s 40th emergency application. Each represents a plea to immediately restore an aspect of the president’s agenda.

The number of emergency applications far exceeds Trump’s predecessors. During the 16 years of the Bush and Obama administrations, those two presidents only brought a combined eight emergency cases to the justices, according to research compiled by Georgetown Law professor Steve Vladeck.

After retaking the White House, Trump surpassed that count in less than four months.

To the president, the swarm of cases is the result of trial judges overstepping to block his policies. To Trump’s critics, it’s a reflection of a president acting without regard to his legal authority.

In the earlier Trump emergency cases, the high court was criticized for repeatedly siding with him without providing any public explanation.

Some of the court’s conservatives even rebutted the push. Last year, Justice Brett Kavanaugh warned the emergency cases are still in initial stages and the court should avoid a “lock-in” effect.

Kavanaugh said there’s a risk in “making a snap judgment and putting it in writing, in a written opinion that’s not going to reflect the final view.”

He was responding to criticism coming at times from lower judges, and from the Supreme Court’s liberal wing.

When Kagan last year headed to the West Coast to speak to a group of judges at an annual conference, she was asked about the emergency docket. Kagan told the crowd the most important point she wanted to make was a “need to explain things.”

“Courts are supposed to explain things. That’s what courts do,” she said, expressing her frustration with the string of recent decisions.

It was top of mind for some Democrats as they questioned Kagan during her rare appearance before Congress this summer. She defended her colleagues from some of the public criticism.

“The reason I think it’s probably not appropriate, at least not now, to call it the ‘shadow docket’ is because we have done, I think, a better job in the recent past of where appropriate — and it’s not always appropriate, but where appropriate — explaining ourselves at least to a moderate degree,” Kagan said.

The next week, Kagan was scheduled to return to the West Coast for the annual conference. Speaking to that crowd of judges once again, she confirmed her views had shifted.

“I think we have made some improvements as we’ve sort of worked our way through this,” Kagan said at the event in Bellevue, Wash., on July 23.

Sometimes, the explanations have been more lengthy.

In allowing White House ballroom construction to continue last month, the 5-4 majority explained they weren’t ruling on the project’s actual legality. Instead, they were finding the challengers likely lacked legal standing to bring the case and that Trump was likely to suffer irreparable harm if he couldn’t proceed.

Other times, the rationale has been brief. When refusing to restore Trump’s mail ballot plan , the court wrote two sentences indicating he was unlikely to succeed on the merits and the equitable factors didn’t favor him. Some court watchers called the language “cryptic.”

The explanations haven’t stopped the liberal justices from frequently dissenting when the cases go in Trump’s favor.

They did so again on Friday. Their conservative colleagues allowed the Department of Homeland Security to overhaul a key immigration tool to better police state voter rolls in advance of November’s midterm elections.

The majority’s ruling came with a seven-page explanation. Jackson’s dissent was nearly twice as long, but it’s now the latest instance that follows a new norm of both the liberals and conservatives frequently outlining their reasoning, at least to some extent.

“The Court also focuses only on the harms the Government will purportedly suffer absent a stay, disregarding the harms that the modified SAVE system has caused, and will likely continue to cause, to lawful voters,” Jackson explained in her dissent on behalf of the liberal justices.

Speaking to the law students the night before, Jackson had been asked directly about who she thinks her audience is when she’s drafting the emergency dissents. She gave no indication she was about to hand down another one.

“I am very much thinking about the American people and describing what is going on from my perspective,” she responded.