Liberal Justices Show Competing Styles in Shadow Docket Dissents

The Supreme Court’s three liberal justices, who last term tended to vote in near lockstep on closely divided cases that were argued, are diverging more when it comes to the emergency docket, reflecting differing views on when—and how aggressively—to critique their conservative colleagues’ approach.

While the three often work as a coalition, Justices Ketanji Brown Jackson and Sonia Sotomayor have offered some of the most strident criticism, which in some cases Justice Elena Kagan has declined to join.

Kagan has reserved her strongest dissents to instances when she argues the majority disregarded its own precedent and to call attention to the lack of explanation behind such orders.

“One of the most notable trends has been Justice Kagan’s seeming reluctance to join the separate opinions in which the other Democratic appointees are casting aspersions on the good faith of the majority,” Kannon Shanmugam, a Paul Weiss partner who regularly argues before the high court, said Tuesday during a panel discussion hosted by The Federalist Society. “I think that is not accidental.”

During the October 2024 term, Kagan was in the majority more often than her liberal colleagues, according to data compiled by SCOTUSblog. But the three liberals were in near unanimous agreement in matters decided on the merits by votes of 6-3 or 5-4, signifying a close alignment on the most contentious issues.

They also dissented together in seven emergency cases between Oct. 7, 2024, and Aug. 9, according to SCOTUSblog data.

The liberal bloc joined together three more times in September, including in an order that paused a lower court’s decision barring the use of racial and ethnic profiling in immigration raids in Los Angeles. They diverged this summer in other cases linked to immigration enforcement and executive power.

Even so, all three liberals have shown a desire to draw public attention to the emergency docket, legal experts say. But it remains to be seen whether any of their conservative colleagues are listening and will change course once the court’s new term starts Oct. 6.

“These dissents are part of a broader critique that is being leveled at the court for making decisions without hearing arguments and without giving reasons,” said David Cole, a Georgetown University law professor and former ACLU legal director. “If these dissents are effective, we should expect to see some reforms in the emergency docket process.”

Jackson Dissents

The rise in cases on the emergency docket, known colloquially as the “shadow docket,” comes as the Trump administration looks to the 6-3 conservative-led court for relief from near non-stop challenges.

The court’s fielding of such requests is intended to provide a mechanism for dealing with issues that need immediate attention, such as when a party faces irreparable harm, and are decided with often little or no explanation.

Jackson, the court’s junior member, has repeatedly argued the majority treats Trump differently than other parties. In one August dissent that no justice signed onto, the Biden appointee compared the court’s approach to a game from the Calvin and Hobbes comic strip.

“Calvinball has only one rule: There are no fixed rules,” she said. “We seem to have two: that one, and this Administration always wins.”

Her opinions reflect an interest in “using her platform” to raise alarm in an accessible way, Brooklyn Law School professor Alexis Hoag-Fordjour said during a webinar hosted by the American Constitution Society Sept. 29. “She’s really giving future generations a road map,” she said.

Kagan Role

Kagan, an Obama appointee who once earned a reputation as a consensus builder, declined to join dissents authored by Jackson in cases where the court gave the Department of Government Efficiency access to sensitive Social Security data, and let the administration strip the rights of roughly 500,000 people from Latin American countries to temporarily live and work in the US.

Kagan said she would’ve denied the petition in the DOGE case but didn’t join Jackson’s dissents and offered no explanation. Sotomayor joined each, which claimed the majority was using its “equitable power to fan the flames rather than extinguish them.”

“I don’t think we can make any meaningful broad statements about why they’re doing what they’re doing when they’re doing it,” said Chicago-Kent College of Law professor Carolyn Shapiro. “We just don’t have enough information.”

But Kagan’s own dissents also demonstrate the difficult position she’s in, said Gregory Magarian, a University of Washington St. Louis law professor.

“Now that the conservatives have six votes, opportunities to make those sorts of plays that Kagan used to make just don’t come up,” he said.

Trump Wins

Magarian noted dissents in emergency matters also offer an opportunity for the minority, since in many cases these are preliminary orders that will return to court when the merits of a dispute are litigated.

The liberals aren’t going to convince the conservatives to “abandon first principles” but “what you can do is point out problems” or try to narrow what they’re doing, he said.

Kagan in one recent opinion criticized the court for granting emergency relief with no briefing, argument, or chance to deliberate in conference.

Still, it’s hard to glean how receptive conservatives are to the critiques.

Justices Clarence Thomas and Brett Kavanaugh in 2024 voiced frustration with more emergency requests. Thomas said emergency demands “short-circuits our process.” But Kavanaugh in September said, “we would be happy if we didn’t receive those applications, but once we receive them, we have to deal with them.”

Justice Amy Coney Barrett was also asked Sept. 17 about Jackson’s claim that the court has a fixed rule that the Trump administration always wins.

“The administration does not always win,” Barrett said. “Cases don’t usually get to us unless they’re difficult, and litigants don’t usually bring cases to us that are futile. The cases that come to us are cases that are susceptible to two sides. It’s certainly not the type of situation anybody has a default setting.”