Kavanaugh Pushes New Label for Supreme Court Emergency Docket

Justice Brett Kavanaugh is doing his best to rebrand the Supreme Court’s emergency docket — known colloquially as the “shadow docket” by another name.

“I think the term ‘interim docket’ best captures it,” Kavanaugh told attendees at the US Court of Appeals for the Sixth Circuit’s conference in Memphis on Thursday, after he was asked to “settle” the dispute over what to call the justices’ oft-criticized practice of issuing brief orders in pending cases without explanation.

Though the docket has also been called the “emergency docket,” for its handling of emergency requests for relief — or the “shadow docket” by critics who see it as opaque —Kavanaugh noted that not all of these requests the justices field are emergencies.

“It’s not real catchy, so I’m not sure it’ll bloom, but that’s the term” Kavanaugh said of his preferred label, which he’d also invoked in July at the Eighth Circuit’s conference in Kansas City.

In his remarks Thursday, Kavanaugh once again defended the justices’ handling of the emergency docket, which President Donald Trump has turned to repeatedly this year to advance his agenda in the face of lower court resistance.

Kavanaugh called it a “challenging circumstance” for the high court. He cited congressional inaction, which has prompted presidents to try to implement their agendas through executive authorities, as a factor that’s led to the rise of emergency docket requests to preserve a policy or order while litigation progresses.

“Someone has to provide an answer, and oftentimes on significant matters it falls to us,” said Kavanaugh, who was nominated by Trump in 2018. “We would be happy if we didn’t receive those applications, but once we receive them, we have to deal with them.”

And he stressed that he tries to make sure the ultimate opinions he writes are clear to the lower court judges tasked with interpreting them.

“I’ve been there too on the DC Circuit,” left wondering “how am I possibly supposed to make sense of this Supreme Court opinion?” he said. “So I’m thinking about district judges, circuit judges, and magistrate judges.”

Kavanaugh previously used the term “interim docket” in remarks to judges and lawyers at the Eighth Circuit’s judicial conference in July. He also defended the lack of reasoning given in emergency orders then, saying there can be a “danger” in providing more explanation at those earlier stages in the case.

The Supreme Court’s use of its so-called “shadow docket” to issue emergency orders has fueled tensions between the lower courts and the justices as the judiciary fields challenges to the Trump administration’s agenda.

Supreme Court justices recently drew a rebuke from a Boston federal judge after Justice Neil Gorsuch, joined by Kavanaugh, wrote in a concurring opinion that lower court judges shouldn’t “defy” the Supreme Court.

Such criticism to the courts is “unhelpful and unnecessary,” US District Judge Allison Burroughs wrote in a footnote in a Wednesday decision.

Lower court judges “are working to find the right answer in a rapidly evolving doctrinal landscape,” and they “must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus,” she wrote.

In his remarks Thursday, Kavanaugh said, “I think it’s important for us as appellate judges to try to recognize the difficulty that trial judges have with making split second decisions.”

Justice Elena Kagan, part of the high court’s liberal wing, has also previously criticized the justice’s use of the emergency docket.

The justice told a group of lawyers and judges at the Ninth Circuit’s judicial conference in Monterey, California in July that one “should be hesitant about” making decisions that disrupt lower courts without the benefit of legal briefing, oral argument, and consultation with each other, “unless we really have to.”

She also previously accused the high court’s conservatives in a dissent of using it “to destroy the independence of an independent agency, as established by Congress.”