Kavanaugh Defends Court Silence on Explaining Trump Orders (1)

Justice Brett Kavanaugh defended the absence of explanations in recent Supreme Court decisions that have allowed the Trump administration to enact its policies.

Kavanaugh, speaking Thursday at the Eighth Circuit Judicial Conference in Kansas City, Missouri, said there can be a “danger” in writing those opinions. He said that if the court has to weigh a party’s likelihood of success on the merits at an earlier stage in litigation, that’s not the same as reviewing their actual success on the merits if the court takes up the case.

“So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that’s not going to reflect the final view,” Kavanaugh said.

Kavanaugh said justices have differing thoughts on when to issue opinions for those cases on the shadow docket, or when parties petition them for emergency relief on lower court rulings. He said those cases will “get back to us soon enough.”

And he said the court has been writing more than it has in the past, pointing to opinions in cases like the administration’s use of the Alien Enemies Act to try and quickly remove people from the country.

Critics have said the Supreme Court’s lack of explanation in recent rulings through the shadow docket have left it unclear on which basis the justices made their decisions. Those orders have included allowing Trump to keep dismantling the Education Department.

Kavanaugh also thanked the attendees of the conference, including district and circuit judges, for their role in preserving the independence of the courts, which has been tested by political attacks on some of those ruling against Trump policies.

He also spotlighted trial judges, who he noted have to act on their own unlike members of the appellate courts. US district judges who’ve ruled against the Trump administration have borne the brunt of heated criticism by the president and his allies. Some have faced articles of impeachment.

“I know how difficult that job is, so I come to you all with great respect for that and for what we all do to preserve what I think is the crown jewel of our constitutional democracy, which is the independence of the judiciary,” Kavanaugh said.