Kavanaugh Defends Sparse Opinions on Supreme Court’s Shadow Docket

U.S. Supreme Court Justice Brett Kavanaugh on Thursday defended the Court’s practice of issuing brief or unsigned orders in politically charged emergency disputes, many of which involve challenges to Trump-era policies. Speaking at the Eighth Circuit Judicial Conference in Kansas City, Missouri, Kavanaugh said drafting full opinions at the early, injunction stage can create a “lock-in effect,” risking error by prematurely signaling the Court’s final view on the merits. Kavanaugh acknowledged criticism that the so-called shadow docket lacks transparency, but argued the justices devote significant attention to emergency petitions and increasingly schedule oral arguments when warranted. He cited recent cases on birthright-citizenship restrictions and Covid-19 vaccine mandates in which the Court provided fuller reasoning before acting. The remarks follow a string of orders that have allowed contested Trump regulations to take effect while litigation continues. At a separate judicial conference last week, Justice Elena Kagan pressed for more detailed explanations, saying the public “has a real responsibility” to understand the Court’s reasoning. Kavanaugh said the justices hold differing views on when to write but share a goal of preserving “the crown jewel of our constitutional democracy, the independence of the judiciary.”