Kavanaugh’s ‘Shadow Docket’ Stance Paints a Dangerous Picture

The Bottom Line

• Justice Brett Kavanaugh is pushing the Supreme Court to fill the void created by the justices’ ban on universal injunctions.
• An increase in the use of the court’s “shadow docket” means justices are making consequential decisions quickly, with a limited record, and often without explaining their reasoning.
• Relying on the truncated emergency docket process and cutting out arguments and full opinions further undermines the authority of lower courts and erodes trust in the judicial branch.

There’s a lot to unpack in the US Supreme Court’s decision in Trump v. CASA, which focuses on the authority of federal courts to issue universal injunctions to government policies. Lawyers and lower courts are scrambling to figure out its impact on the scope of injunctions in the many pending cases against the Trump administration as well as the availability of class actions and other work-arounds.

Amid the welter of footnotes and side discussions in the various opinions is a concurring opinion by Justice Brett Kavanaugh that sets forth a striking and dangerous view of how our judicial system should deal with challenges to governmental policies during the months and often years it takes to reach full resolution of an issue.

Kavanaugh foresees a Supreme Court that jumps into cases pending in the lower courts in ways that disrupt long-established understanding and practices of federal courts. His concurrence is nothing less than a full-throated manifesto for the ascendancy of the Supreme Court’s “shadow docket.”

While Justice Amy Coney Barrett’s majority opinion diminishes the role of lower federal courts, Kavanaugh’s concurrence would move the Supreme Court into the resulting vacuum. His opinion portends an even further increase in emergency rulings that are issued hastily and offer no reasoning—two qualities that should set off alarm bells.

When a challenge is filed to a new government policy—whether a statute, regulation, or an executive order—plaintiffs will typically seek a preliminary injunction, a judicial order halting the policy before it goes into effect during the pendency of the litigation. At issue in the CASA case was the proper scope of preliminary injunctions. The Supreme Court emphasized that in the normal course a court should only stay operation of the policy to the extent needed to protect the particular plaintiffs in a case.

In his concurrence, Kavanaugh notes that the grant or denial of a preliminary injunction will generally lead to an appeal, and the district court decision is only the start of the process, not the end. He also points out that the interim status can last for years, so a lot rides on the granting and scope of a preliminary injunction.

He goes further, pointing out that often a nationwide preliminary solution is important—avoiding years of unworkable patchworks. So far, so good.

So, what is the process for arriving at a necessary nationwide interim solution, especially in the absence of nationwide district court ordered injunctions? Kavanaugh predicts that these cases will “regularly” come to the Supreme Court, and in the absence of broad injunctions, he acknowledges that the court may well be flooded with emergency requests. In a key paragraph, he states:

“When a stay or injunction application arrives here, this Court should not and cannot hide in the tall grass. When we receive such an application, we must grant or deny. And when we do -- that is when the Court makes a decision on the interim status of a major new federal statute or executive action -- that decision will often constitute a form of precedent (de jure or de facto) that will provide guidance throughout the United States during the years long interim period until a final decision on the merits.”

This has never been how the system works and, more importantly, it’s deeply flawed.

First, until 2017, the court rarely intervened in ongoing litigation on an emergency basis, generally allowing the district and circuit courts to handle issues relating to preliminary remedies. Scholars have referred to the increasing willingness of the Supreme Court to intervene in ongoing litigation as its growing “shadow docket.” Kavanaugh’s concurrence elevates the shadow docket to a principal means of resolving a vast number of critically important legal issues.

The shadow docket, however, can’t perform this envisioned role fairly and effectively as emergency applications are generally decided without oral argument based on hastily prepared papers. Most importantly, the court typically provides no reasons—or at most only a few sentences—explaining its decisions.

Recently, many of its rulings have been accompanied by long dissents. But in contrast to full decisions, the majority ignores rather than joins issue with the dissenters. The silence is likely designed to avoid creating half-baked precedent.

It’s unlikely that the administration would accord emergency Supreme Court rulings broad precedential effect, especially if the orders they are reviewing have been framed narrowly, as the CASA decision demands.

Narrow injunctions that only address individuals who sue mean the administration is free to continue enforcing its policies for everyone else. A broad injunction, or one in which the court explains its reasoning for enjoining the policy, would require greater compliance by the administration.

Given their lack of reasoning and the hasty manner in which they are issued, shadow docket rulings aren’t a fair means of establishing precedent that creates national uniformity on important issues.

The court does have the authority to act with more deliberation on emergency applications and perhaps this is what Kavanaugh envisions.

In CASA, it put the case down for oral argument and full briefing and issued a major decision. Yet, CASA is an exception. The vast majority of rulings on applications for emergency relief are issued through truncated processes with limited explanation. This is true even for cases of major significance.

For example, this term, the court used its emergency powers to stay an injunction that blocked the Social Security Administration from turning its huge trove of private data over to Elon Musk’s DOGE. In doing so, the court provided no meaningful explanation.

In another ruling, the court permitted immigrants to be deported to third countries with no prior notice without addressing the due process requirements of the Constitution. This order led to a second ruling that, without explanation, led to the removal of eight individuals to South Sudan.

Similarly, the court gave no reasons for its stay of an injunction halting the recission of temporary protected status to immigrants from nations mired in conflicts.

In these and other cases, Kavanaugh formed part of the court’s silent majority, instead of siding with dissenting justices who decried the court’s cursory treatment of the important issues these cases raised.

These examples illustrate the critical nature of “interim” rulings. When preliminary relief is stayed by the court, the situation on the ground often changes irreparably—in some cases mooting the entire lawsuit.

Once a person is deported, it’s difficult to bring them back. Once private data is disclosed, it can’t be undisclosed. Once an agency or program is defunded or staff are terminated, it’s hard to put Humpty back together again.

Kavanaugh’s approach reflects a major shift in the locus of decision-making from the lower courts to the Supreme Court. The remainder of his opinion is a brief on why the Supreme Court is the component of the judiciary best suited to decide these important matters—nine minds are better than one!

But he overlooks the fact that the Supreme Court has long relied on the district courts for good reason: These courts have advantages of their own—they have broader fact-finding capabilities than the Supreme Court and can delve more deeply into the realities of a situation, digging beneath the assertions of counsel.

In recent months we have seen federal district judges like Paula Xinis and James Boasberg use these powers. Because of their ongoing involvement, they are better situated to grasp and gauge the equities of a situation, a critical part of the preliminary injunction standard. Moreover, district court rulings are appealable to regional courts of appeals which can provide oversight so that emergency Supreme Court intervention is rarely needed.

At a time when federal judges are subject to relentless ad hominem attacks and the administration is skirting compliance with their orders, the Supreme Court should be reinforcing their role rather than undercutting them by encouraging emergency appeals of their rulings.

Kavanaugh’s concurrence coupled with the court’s recent practice sends the wrong message. It further normalizes a system in which the Supreme Court routinely steps into ongoing litigation to rule on important matters without full briefing and without providing explanation.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Matthew Diller is dean emeritus and professor of law at Fordham University School of Law and former dean of the Benjamin N. Cardozo School of Law.

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