Kavanaugh Comment Ups Supreme Court Tension Over ‘Shadow Docket’

The Supreme Court’s “shadow docket” debate broke new ground when Republican-appointed justices responded in writing for the first time to what they called the dissent’s “worn-out rhetoric” on the subject.

Justice Brett Kavanaugh’s concurrence on Monday, joined by Samuel Alito, took umbrage at Elena Kagan’s dissent for the three Democratic appointees that accused her colleagues of making new law in a voting case without explanation.

“It clearly struck a nerve,” said Stephen Vladeck, a University of Texas law professor and leading critic of the court’s unusual and unexplained procedural maneuvers.

The back-and-forth between the justices fused two already potent issues at the high court—voting rights and the court making significant legal decisions without justifying them.

The Republican-appointed majority didn’t explain why it put a Republican-drawn voting map back in play ahead of the November election. There was only Kavanaugh’s concurrence, Kagan’s dissent, and a second dissent by Chief Justice John Roberts, who has otherwise backed Republicans in voting cases.

A lower-court panel featuring two Donald Trump appointees found the map diluted Black voting power after reviewing evidence.

Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett didn’t explain why they agreed to form a majority with Kavanaugh and Alito, or why they didn’t sign onto Kavanaugh’s explanation.

“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument,” Kagan wrote, joined by Justices Stephen Breyer and Sonia Sotomayor. She said Alabama’s stay request that the majority granted was “premised on an entirely new view of what the law requires.”

Kavanaugh said Kagan’s “catchy but worn-out rhetoric” was “off target.”

The shadow-docket term was coined by University of Chicago law professor and former Roberts clerk William Baude. Also called the emergency docket, it differs from the merits docket that features cases regularly receiving full briefing, argument, and reasoned decision after deliberation. With increased scrutiny on the docket, the court has heard argument recently in cases that may have previously been decided without argument.

Alito likewise bucked shadow-docket criticism in a Notre Dame speech last year that mirrored the language he signed onto in Kavanaugh’s opinion Monday in Merrill v. Milligan. “The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” Alito said in the September speech.

The speech followed Kagan’s use of the shadow-docket term in another 5-4 move in a contentious case, when the court allowed Texas’ six-week abortion ban, which is still in effect, to take effect. She said there that the majority’s decision “is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more un-reasoned, inconsistent, and impossible to defend.”

Kavanaugh’s concurrence Monday “was the first time besides Alito’s speech at Notre Dame that any of the justices who have been in the majority in most of these cases have pushed back on the shadow-docket charge,” Vladeck said. “In that respect, it is revealing that the pushback was simply to assert that these criticisms are worn out,” he said.

Kavanaugh said in his concurrence that the stay granted for the state “will allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations—and ensure that we do not have to decide the merits on the emergency docket.”

But “Justice Kavanaugh’s remarks don’t seem to grasp the very serious concern here,” said Amir Ali, executive director of the MacArthur Justice Center. Like Vladeck, he has testified before Congress on the shadow-docket issue.

“It’s not just about setting new precedent via unreasoned and unsigned orders,” Ali said. “This is also about drastic departures from the ordinary functioning of the judicial system, all of which seem to flow in one political direction.”

Ali said the concern isn’t worn-out but rather “it is urgent and it is precisely why public confidence in the Supreme Court is eroding.”