By Jonathan Stempel
NEW YORK (Reuters) – Justice Elena Kagan said the U.S. Supreme Court would be better off spending less time hurrying through cases on its emergency docket.
“It’s a very hard problem,” Kagan said on Monday in an hour-long interview with a professor at New York University’s law school. “I don’t think we do our best work in this way.”
More commonly known as the “shadow docket,” the emergency docket is where justices address issues – some controversial – that litigants want resolved quickly, sometimes after lower courts issue rulings that apply nationwide.
Justices have relied increasingly on this process to rule in a wide array of cases without the normal deliberative process, including public oral arguments and full written decisions.
Kagan, a justice since 2010 and part of the court’s three-member liberal wing, said the court issues decisions in only about 60 cases a year, fewer than half the norm in the 1980s when she clerked there, but spends “a ton more time” on the shadow docket.
She said cases there began increasing during the Trump administration, when the U.S. solicitor general’s office decided it could not risk waiting until former President Donald Trump was no longer in office, and remain elevated during the Biden administration.
“It’s a symmetric problem: it doesn’t really matter who’s president,” Kagan said. “Government and non-government parties started coming to the court in ever-increasing numbers.”
Lower court opinions reflecting a thoughtful review of factual and legal issues “actually help us do our business,” she said.
One case taken from the shadow docket concerned a near total ban on abortions in Idaho.
In June, the court temporarily cleared the way for women there to obtain abortions when their health was at risk, reinstating a lower court judge’s ruling halting the ban.
A majority concluded that the court “improvidently granted” the case, meaning it should not have agreed to consider it. Kagan agreed in a concurring opinion.
“I thought it was a mistake from the get-go,” she said on Monday. “It’s a good reminder of some of the things that can go wrong” if you accept cases “without a good understanding of what a case is about.”
Kagan also suggested that the court adopt a means to enforce the ethics code it adopted last year, saying it could help bolster public confidence in the court.
Fewer than half of Americans approve how the Supreme Court is doing its job, according to at least four polls this year.
Kagan was also reminded of the friendship and shared love of opera between late Justices Antonin Scalia and Ruth Bader Ginsburg, ideological opposites on many issues, and asked if shared interests could help bridge gaps on the current bench.
She said she has taken up golf recently, and that she has talked about the sport with Chief Justice John Roberts and Justice Brett Kavanaugh, both on the court’s conservative wing.
“Why should you care?” Kagan said. “If it leads to better decision making, if it leads to better conversations … about the court’s business, then it’s a fantastic thing. But the proof is in the pudding … It should not be sufficient for us to say, ‘we go to the opera together.'”
(Reporting by Jonathan Stempel in New York; Editing by Matthew Lewis)
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