Justice Brett Kavanaugh defended the Supreme Court’s recent practice of handing victories to President Donald Trump without explaining those decisions, while speaking at a judicial conference on Thursday.
For most of its history, the Supreme Court was very cautious about weighing in on any legal dispute before it arrived on its doorstep through the (often very slow) process of lawyers appealing lower court decisions. There are many reasons for this caution, but one of the biggest ones is that, if the justices race to decide matters, they may get them wrong. And, on many legal questions, no one can overrule the Court if the justices make a mistake.
Beginning in Trump’s first term, however, the Republican justices started throwing caution to the wind. When Trump loses a case in a lower court, his lawyers often run to the Court’s “shadow docket,” a once-obscure process that allows litigants to skip in line and receive an immediate order from the justices, but only if the justices agree. Unlike in ordinary Supreme Court cases — argued on the “merits docket” — the justices do not often explain why they ruled a particular way in shadow docket cases.
Before Trump, the Court was hypercautious about granting relief on the shadow docket, because doing so often required them to decide high-stakes matters without much deliberation, full briefing, or an oral argument.
Now, the Supreme Court hands down “emergency” orders benefiting the Trump administration so often that it’s just a regular part of the justices’ work. (The Court was much more reluctant to grant similar relief to former President Joe Biden, a Democrat.) As law professor Steve Vladeck pointed out in late June, the Court granted, at least in part, “each of the last 14 [shadow docket] applications filed by the Department of Justice.”
Since then, the Court handed Trump two more victories on its shadow docket, including a major decision permitting the Trump administration to fire close to half of the Department of Education’s workforce.
Though the Democratic justices frequently dissent from these shadow docket decisions, the Court’s Republican majority rarely explains why they cast their lot with Trump. At a judicial conference last week, Justice Elena Kagan, an Obama appointee, said that these silent decisions are a mistake. “Courts are supposed to explain things,” Kagan argued. “They’re supposed to explain things to litigants. They’re supposed to explain things to the public, generally.”
And that brings us back to Kavanaugh’s remarks on Thursday, which seemed to be a direct response to Kagan and others who’ve offered a similar criticism of the Court’s unexplained pro-Trump decisions.
Kavanaugh’s argument for silence is pretty good — but only if you assume that the Court needs to fast-track every request from Trump
Kavanaugh’s case for deciding Trump cases without an explanation is fairly straightforward. The shadow docket is often the Court’s first opportunity to weigh in on a particular lawsuit, but it will not be the last. Typically, when the Court grants shadow docket relief, that relief is only temporary — lasting while the case is being litigated to a final decision.
Once a federal appeals court reaches its final decision on the matter, the losing party can seek Supreme Court review of that final decision. And, if the justices decide to take up the case at this later stage, it will receive the full deliberation, briefing, and oral argument that Supreme Court cases have traditionally received.
Kavanaugh warned that there is a “risk,” if the Court releases a majority opinion when the case reaches them on the shadow docket, “of a 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.”
If the majority explains itself, the argument goes, then the justices may become entrenched in a position that is incorrect — and that they would not have reached if they had considered the case for the first time after full briefing and argument. Lower courts, meanwhile, are bound by Supreme Court opinions, even when those opinions are handed down on the shadow docket.
So if a majority of the justices hand down a half-baked opinion that is riddled with errors and unworkable legal standards, every other court in the country will have to apply those standards to similar future cases.
Viewed through a narrow lens, Kavanaugh makes a pretty good argument. If you assume that the Supreme Court cannot simply tell Trump to wait until after the lower courts are done considering his cases before the justices get involved, as it did for nearly all litigants for most of its modern history, then Kavanaugh is right that these hastily decided cases should often be decided without an opinion.
The justices should, at the very least, be briefed on all the downside risks of deciding a case in a particular way before they issue a binding opinion that makes those risks a reality.
But the justices do not need to drop everything and race to hand down a decision every time that Trump’s lawyers ask them to do so. The Court used to have a way of screening shadow docket petitions to ensure that only the ones that required their immediate attention received it. It could go back to doing things the way they were done before Trump’s rise to power.
Nken v. Holder, briefly explained
The Supreme Court explained how the shadow docket is supposed to work in Nken v. Holder (2009), which was handed down roughly a decade before the Court turned its shadow docket into a fast-track complaints department for Donald Trump.
Nken explained that, when a litigant asks an appellate court to block a lower court’s decision while the case is still ongoing, it is not enough for that litigant to demonstrate that they are likely to prevail on appeal. Someone seeking shadow docket relief (or its equivalent in a lower appeals court) must also show that they “will be irreparably injured absent a stay.” Often, appeals courts must also ask whether blocking the lower court’s decision would “substantially injure” any third parties, or otherwise harm “the public interest.”
Think of it this way: Imagine that Pepsi sues Coke, wrongly claiming that it is illegal to sell Coke products in the state of Indiana. Now imagine that a trial judge issues an injunction prohibiting Coke from selling anything in that state.
This injunction is illegal, and an appeals court should eventually reverse the trial court. But, under Nken, Coke may not be entitled to immediate relief before the appeals court reaches its final decision. The ban on Coke sales in Indiana, while illegal, probably won’t cause any irreparable harm to Coke. When it wins on appeal, Coke can calculate how much money it would have earned if it had been allowed to do business in Indiana while the injunction was in place. And a court can potentially order Pepsi to reimburse Coke for this amount of money.
Now imagine a different version of Pepsi v. Coke, where Pepsi convinces a trial judge to force Coke to reveal its secret formula for Coca-Cola syrup. Once a secret is out, it is out. So, under Nken, Coke should be entitled to an immediate appeals court decision allowing it to keep its most precious trade secret confidential.
As Justice Ketanji Brown Jackson explained in a pair of dissents earlier this year, however, the Republican justices appear to have abandoned Nken, at least when the Trump administration asks for shadow docket relief.
In Social Security Administration v. AFSCME (2025), for example, the Republican justices ruled that DOGE, the enigmatic White House office that was once led by billionaire Elon Musk, may have immediate access to sensitive information kept by the Social Security Administration. Notably, however, when a judge asked one of Trump’s lawyers what harm the government would experience if DOGE’s access to this information were delayed, the lawyer did not answer — saying instead that the Trump administration would “stand on the record in its current form.”
Similarly, in the Trump administration’s brief to the justices in AFSCME, Trump’s lawyers did not even attempt to argue that it faced irreparable injury without shadow docket relief. That brief devoted only one paragraph to the question of irreparable harm, and it did not identify any injury to the government that could not be unraveled by a future court order. Instead, it merely complained that the lower court order blocking DOGE’s access “impinges on the President’s broad authority.”
And yet the Republican justices voted with Trump, violating Nken in the process.
Restoring Nken would not mean that shadow docket relief was never available, or even that it would not be available to the federal government in particularly pressing cases. To understand why, consider Judge Matthew Kacsmaryk’s infamous decision attempting to ban the abortion drug mifepristone by rescinding the Food and Drug Administration’s approval of this medication.
The Supreme Court blocked Kacsmaryk’s decision on the shadow docket, and it was right to do so because cases involving pregnancy are a classic example of a time-sensitive matter where people will be irreparably harmed if the courts do not act quickly. If Kacsmaryk’s order had remained in effect, many women seeking abortions would have been unable to obtain the medically recommended treatment. Some might have undergone much more invasive procedures, such as a surgical abortion. Others may have been forced to carry their pregnancy to term.
These are irreparable harms. Once a woman undergoes a surgery, it is not possible to unoperate on them, and then go back in time to give them the medication that they should have received in the first place.
On the other end of the spectrum, consider the Republican justices’ decision in Trump v. CASA (2025), which held that lower court orders blocking Trump’s attempt to strip citizenship from some Americans may have been too broad. Though CASA was the unusual shadow docket case where the Republican justices actually produced an opinion that discussed Nken, they brushed off the question of how, exactly, the government is irreparably harmed if someone remains a citizen while this case is being litigated.
That was wrong. Nken should have required Trump to demonstrate why these Americans couldn’t just be stripped of their citizenship at some later date if he somehow prevails in this litigation.
In any event, restoring Nken would address Kavanaugh’s concern about hastily drafted opinions in nearly every case. If the Court started applying Nken to Trump, most of his shadow docket petitions would simply be dismissed for seeking relief prematurely — so there would be no need for the Court to issue a rushed opinion explaining whether Trump is likely to prevail once the case is fully litigated. If Nken were still applied, the risk that lower courts would then be bound by those rushed opinions would also disappear in most cases, because there would be no opinions.
There would still be occasional shadow docket decisions blocking a lower court’s order — like the Court’s very brief order in the mifepristone case, where the justices blocked Kacsmaryk without fully explaining themselves. But those decisions would be rare. There would no longer be more than a dozen decisions handed down in just a few months, all of which favor a Republican administration, and few of which contain any legal reasoning whatsoever.
