WASHINGTON (CN) — The mask of collegiality slipped once again as Supreme Court Justices Elena Kagan and Brett Kavanaugh sparred last week over the court’s use of its emergency docket. The incident marks not just another example of cracks forming within the court but also how the justice's words are often at odds with their actions.
“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 in a Feb. 8 dissent for an Alabama redistricting case.
Kavanaugh — seemingly displeased with Kagan’s critique — countered in his concurring opinion, “The principal dissent’s catchy but worn-out rhetoric about the ‘shadow docket’ is similarly off target.”
Against a backdrop of vastly important decisions the justices make throughout the term, the significance of their collegiality can seem a bit afield. For many court watchers, however, it is part of a common theme suggesting cracks in the foundation.
“In their public statements, the justices are seeking to preserve the integrity of the Court, claiming it is neutral and apolitical, and simply follows the law,” Lawrence Gostin, a professor at Georgetown Law, said in an email. “The justices have also used the shadow docket in ways that diverge from historic practices on the Court. In other words, the justices are saying one thing, but doing something nearly opposite. The justices have been hyper-partisan and cavalierly ignoring settled precedent.”
Justice Samuel Alito castigated the media’s portrayal of the court’s shadow docket just last year during a speech at the University of Notre Dame, claiming reporters had created a view that “a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view.”
“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,” the Bush appointee said. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”
Alito’s assessment that the justices’ use of the emergency docket did not align with its portrayal in the press stands at odds with actions the court has taken this term. The court’s majority has used its emergency docket to make consequential and precedent-thwarting decisions with little explanation in the process.
“It is no doubt that they are using the shadow docket to do big things,” Adam Winkler, a professor at UCLA School of law, said in a phone call. “They effectively overturned Roe v. Wade for one of the most populous states in the country this year through the emergency docket. They are using the emergency docket to articulate new laws.”
Critiques of the court’s use of the shadow docket aren’t just about what the justices are doing on the docket but how they are doing it.
“The shadow docket is not something new but what's new is what seems to be a very politicized use of it,” Caroline Fredrickson, a Georgetown University law professor, said in a phone call.
Last week, the conservative majority blocked a lower court ruling in an Alabama redistricting fight allowing a Republican-friendly congressional map to be used in upcoming elections. The lower court — which included two Trump-appointed judges — found that the new map violated the Voting Rights Act.
Besides making a ruling that some experts criticized as unnecessary and political, the justices in the majority also failed to provide an explanation for their ruling.
“That's also become something pretty commonplace in some of the shadow docket cases where we don't get a very well explained majority opinion,” Winkler said. “It's one of the reasons why the court should not be making new law or really calling into question existing doctrine through the shadow docket.”
The justices’ actions in the Alabama case are being compared to how they handled a challenge to abortion access in Texas last year.
“They're intervening in places where they would normally not and they're not intervening in places they normally would,” Fredrickson said. “So it sort of seems like they're putting the shadow docket approach and they're turning it upside down and bending backward to try and accommodate the cases that they want to hear and to strike down laws they don't like or to at least facilitate that process and to uphold ones that they do. It just all seems very political and very untraditional.”
But explaining the justices’ rulings as driven by ideological leanings also stands at odds with what the justices have told the public. The justices maintain that they are driven by judicial philosophies and not partisan politics. In a speech last year, Justice Amy Coney Barrett remarked, “this court is not comprised of a bunch of partisan hacks.”
The appearance of the justices’ partisanship can be driven by the deeply held ideological beliefs that often contribute to why justices are nominated to the court in the first place.
“When a justice believes his or her ideology so strongly that they view the viewpoints that they are rejecting as not merely wrong, but illegitimate, they do injudicious things,” Richard Bernstein, an appellate lawyer, said in a phone call. “This includes overusing the emergency docket.”
Some experts think the justices’ claims of being apolitical amount to little more than empty cliches, but others think they genuinely believe those sentiments.
“I don't think they're being hypocrites so much as I do think that that's part of how the justices really do think about themselves and think about the job that they're doing,” Winkler said. “The problem is that no one really believes them, at least when it comes to the big high-profile cases.”
Giving the impression of partisanship or ideological leanings will cause the public to view the justices as politicians instead of impartial judges.
“The court should be nonpartisan arbiters of the law, whose focus is on resolving the most important cases, period," Bernstein said. "Every time justices appear eager to intervene, to make broader rulings than needed for that particular case, to score points with some base by using snarky language, they seem like politicians and not like judges. The American people, we know, think very lowly of politicians. To avoid this, justices should exercise restraint, including by using the emergency docket less often and more even-handedly."
If the justices continue to use the emergency docket in ways that appear partisan while telling the American people the opposite is true, the public’s trust in the court will degrade further.
“At a certain point people don't think it's legitimate and its rulings aren't legitimate and they start to ignore them,” Fredrickson said.
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