Justice Elena Kagan expressed concern that the U.S. Supreme Court spends too much time rushing through cases on its emergency docket, commonly known as the “shadow docket.”
During an hour-long interview at New York University’s law school on Monday, Kagan stated, “I don’t think we do our best work in this way,” referring to the court’s growing reliance on this process to resolve cases quickly, sometimes without the usual deliberative steps, such as public oral arguments and full written decisions.
The shadow docket has been used increasingly in recent years to address urgent and often controversial issues, such as nationwide injunctions issued by lower courts.
Kagan, a justice since 2010 and part of the court’s liberal wing, noted that while the court only hears around 60 cases a year—less than half the number from when she clerked in the 1980s—it now spends significantly more time on the emergency docket.
She attributed the rise in shadow docket cases to the Trump administration’s concerns about timing, as the U.S. solicitor general’s office sought swift decisions before Donald Trump left office. This trend has persisted into the Biden administration, with both government and non-government parties increasingly seeking quick rulings from the court.
Kagan emphasized the value of lower court rulings, which undergo thorough factual and legal review, in helping the Supreme Court do its work. She pointed to a case involving a near-total abortion ban in Idaho as an example of the risks associated with making rushed decisions.
In June, the Supreme Court temporarily allowed women in Idaho to obtain abortions when their health was at risk, but later reversed the case, with Kagan concurring in an opinion that stated the court should not have agreed to take it in the first place. “It’s a good reminder of some of the things that can go wrong,” she said.
In addition to her comments on the shadow docket, Kagan suggested the court adopt a means to enforce the ethics code it introduced last year, noting that it could improve public trust in the institution. Recent polls show fewer than half of Americans approve of how the Supreme Court is performing.
Kagan also reflected on the importance of personal relationships among justices, referencing the famous friendship between ideological opposites Antonin Scalia and Ruth Bader Ginsburg.
When asked if shared interests could help bridge divides on the current court, Kagan mentioned she had taken up golf and discussed the sport with conservative justices John Roberts and Brett Kavanaugh.
However, she cautioned that while such interactions can foster better conversations, they should not be seen as a substitute for thoughtful decision-making. “The proof is in the pudding,” she said. “It should not be sufficient for us to say, ‘we go to the opera together.’”
