Justice Kagan Says Don’t Call It the “Shadow Docket”

Associate Justices Elena Kagan and Amy Coney Barrett testified before Congress this week.

Much of the press coverage and online commentary has focused on the justices’ discussion of their need for greater security and increasing threats to the federal judiciary, with a particular focus on Justice Barrett’s comments on her personal experience. Contrary to the claims of some “conservative” influencers, Justice Barrett did not say anything suggesting such threats–including the swatting attempt on her home–had affected her work or decision-making. She actually said the opposite, that all of the justices “continue to do their jobs without fear or favor.”

In the House, the justices were asked about the Court’s handling of requests for interim or emergency relief on the so-called “shadow docket.” The exchanges here are interesting, not least because Justice Kagan said it is no longer appropriate to use the “shadow docket” label.

Here is an excerpt from the transcript.

REP. HOYER: Let me go to — and I’m not asking you about the substance of decisions, but I am asking you. There has been a substantial increase in what I guess we call shadow decisions. Is that a budget-related or policy-related phenomenon?

BARRETT: Well, let’s see. I think that litigants have long had the ability to seek interim relief from the court, but I think you are certainly right, Ranking Member Hoyer, that we have seen a big change in the volume and the nature of such requests.

The court is doing its best to adapt and respond. I think it is a policy question, not so much a budget one.

I don’t know if you have additional thoughts.

KAGAN: I am sure there will be additional questions.

(LAUGHTER)

HOYER: Does that impact on the transparency, which you referred to not putting up fences so that people had access?

There are concerns, obviously, that these shadow dispositions impact adversely on the knowledge the public has about how the court makes its decisions and who is making what decisions. Do you want to comment on that?

KAGAN: Ranking Member Hoyer, there are definitely issues with respect to the emergency — we call it the emergency docket. Some of us call it the interim docket. I — it’s a terminology nightmare. I call it the emergency docket. And there are definitely questions about how it is appropriate to use that docket, when it’s appropriate to use that docket, the standards to be applied, the way those standards actually work out in individual cases.

And you see that in some of our decisions, because we are, in many, if not most of these cases, not unanimous. There will be a majority and a dissent. The reason I think it is probably not appropriate, at least not now, to call it the shadow docket, is because we have done, I think, a better job in the recent past of, where appropriate, and it’s not always appropriate, but where appropriate, explaining ourselves, at least to a moderate degree.

I think if you had asked me this question a year ago, I might have said that there would be — there were some cases, and, in fact I did say, I had said in some public events that there were some cases where we did so little explanation of what lay behind our order that lower courts had a great deal of difficulty trying to figure out what that order was.

Were we saying something about the merits of the case? Were we saying about — something about who had standing to contest the merits? Were we saying something about appropriate remedies? Nobody knew.

I don’t think that that’s so much a problem anymore. I think that, as we have gotten more experienced in these constant requests that are coming to us about requests for emergency relief, that we better recognize that at least sometimes there is a need for additional information.

And we have issued opinions, and sometimes majority and dissenting opinions accordingly.