The Justices Seem Unhappy—and the Emergency Docket Is a Factor

In a political climate with a feckless Congress and an overly aggressive executive, the judiciary is less riven by partisan strife—and far more well-functioning—than the other branches of government. But if the US Supreme Court is the “Last Branch Standing,” to borrow the title of legal commentator Sarah Isgur’s new book about the court, are its legs starting to wobble?

Justice Sonia Sotomayor leveled a somewhat personal criticism while speaking at the University of Kansas School of Law earlier this month. In discussing a concurrence in Noem v. Vasquez Perdomo, an emergency-docket case where conservative justices gave the green light to certain immigration stops in Los Angeles, she referred to an unnamed colleague who wrote that “these are only temporary stops. This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.”

Sotomayor was referring to Justice Brett Kavanaugh, the only member of the Vasquez Perdomo majority who wrote an opinion explaining his vote (and the son of two lawyers). To her credit, she apologized—but the fact that she made the comment at all is revealing.

The following week, Justice Ketanji Brown Jackson offered a less personal, but still pointed, critique of her colleagues. In a lecture at Yale Law School, she castigated the conservative majority’s rulings on the emergency docket as “scratch-paper musings” that don’t acknowledge real-world stakes, making the decisions “seem oblivious and thus ring hollow.”

It’s not only the liberal justices who have issues with the current state of the court. In an appearance this month at the University of Texas at Austin, Justice Clarence Thomas made a remark implying that relations between the justices used to be better: “I joined a court that dealt with differences as friends. We respected each other”—past tense—and acted with “civility.”

Then last weekend, The New York Times published an article about what reporters Jodi Kantor and Adam Liptak described as “the birth of the Supreme Court’s shadow docket,” based on leaked memos from 2016. We don’t know who leaked the memos—just as we don’t know who was behind the May 2022 leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization.

I strongly doubt that any justice was involved in the leaks. But regardless of who’s responsible, the leaks, combined with the justices’ latest comments, paint a somewhat unflattering picture of the court. In the words of George Washington law professor Jonathan Turley, the court, historically “an island of integrity and civility” in Washington, is starting to appear “increasingly porous and partisan.”

What’s causing this possible erosion in the court’s collegiality and culture? Some blame probably belongs to the subject of Sotomayor’s and Jackson’s recent remarks: the emergency docket, also called the “shadow docket” (usually by critics) or the “interim docket” (usually by defenders).

“The interim docket may be more prone to creating tensions between the justices because they have to make decisions very quickly,” explained Vanderbilt law professor Brian Fitzpatrick, a former clerk to the late Justice Antonin Scalia. “This sometimes causes them to do things that might look ill-considered in hindsight.”

“I do think the shadow docket likely plays a role,” said Carolyn Shapiro, a professor at the Chicago-Kent College of Law and former clerk to retired Justice Stephen Breyer. “The liberal justices are clearly unhappy with the way the court is deciding very consequential things, sometimes with no explanation whatsoever, in very rushed ways—and their dissents have indicated as much.”

Another way the emergency docket could be causing relationships between the justices to fray is by forcing them to work on highly controversial cases year-round, without the cooling-off period or reset of their traditional summer recess.

“I really do have deep fears that the incredible rate of decision making over [last] summer is going to have long-term negative consequences for dynamics within the Supreme Court itself,” said Yale law professor Justin Driver, another former Breyer clerk, at a SCOTUSblog conference in September 2025. In his view, denying the justices a much-needed “break from each other” could be causing “sharp elbows in opinions—not just in June, but in January.”

Alas, even if it goes through busier periods and calmer periods, the modern emergency docket isn’t going away. As chronicled in The Times, it has been around for a decade, enduring across multiple presidential administrations.

So what can the justices do on their own to repair their relationships?

“They need to spend some quality time together,” suggested Fitzpatrick. “The more people hang out with each other, the less inclined they’ll be to undermine each other publicly. They need to have some beers, or go skeet shooting or kayaking together.”

The idea of the justices going on a team-building retreat and doing trust falls—sans robes, which could complicate the exercise—might seem silly. But as Isgur reminded me in our podcast conversation, even if their black robes are intended to convey impersonality and objectivity, “the justices are human.”

So after what will likely be a contentious end to the current term, it might be wise for these nine humans and their spouses to take a bonding trip. Or they could at least have a dinner party together, perhaps featuring dishes from “Chef Supreme,” a cookbook of recipes contributed by Supreme Court spouses.

If the justices start getting along better, and if the summer is relatively quiet for them, that could help with their “optics” problem—and my own view is that much of it is optics. In the words of Supreme Court litigator Lisa Blatt, summarizing the argument of Isgur’s book, the court “is not made up of heroes and villains, but real people who do their level best in service of us all.”

But I’m not naïve. I acknowledge the possibility, raised by some court critics, that the justices have more than just an optics problem.

“What Justice Sotomayor said about Justice Kavanaugh goes to a substantive issue,” argued Carolyn Shapiro. “The justices are making shadow-docket decisions that have dramatic effects on people’s lives—and the way they’re analyzing the legal factors doesn’t take this into account.”

“What’s spilling out into public view isn’t superficial,” she concluded. “It’s related to the substance of what they’re doing.”

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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