At the recent Ninth Circuit Judicial Conference, Supreme Court Justice Elena Kagan denounced decisions coming from the so-called “shadow docket,” which bear no explanation. Watch:

Yesterday Justice Kagan talked about the “most important thing” she had to say about the shadow docket: how it deprives litigants, judges, and the public of the Court’s rationale, using as an example SCOTUS’ order that greenlit the dismantling of the Department of Education. pic.twitter.com/y877EiqPdv

— Stephen Spaulding (@SteveESpaulding) July 25, 2025

Kagan complains about emergency orders by the court after cases without oral arguments and with no written opinions. The Trump administration has brought a number of emergency cases to the court after numerous universal injunctions by lower court federal judges.

Kagan complains:

What we started doing when we started doing these things is just issuing orders. But I think that that’s not the right way to approach it, because the orders themselves don’t tell anybody anything about why we’ve done what we’ve done. A court is supposed to explain things. That’s what courts do. They’re supposed to explain things to litigants. They’re supposed to explain things to the public generally. … I don’t mean like we should write 50-page magnum opuses. I think, you know, one or two or three pages would do.

In The New York Sun, A.R. Hoffman explains the history of the “shadow docket,” writing:

The phrase “shadow docket” was coined in 2015 by a conservative legal scholar, William Baude, to refer to “a range of orders and summary decisions that defy its normal procedural regularity.” A decade ago Mr. Baude reckoned that these orders “lack the transparency that we have come to appreciate in its merits cases.” He likened them to “lightning bolts.”

In a 2021 speech at Notre Dame titled “The Shadow Docket,” Justice Samuel Alito defended the court’s reliance on rapid rulings, declaring that the “catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

Justice Kagan, though, in a case last week, Trump v. Boyle, accused the Trump administration of deploying “its emergency docket to destroy the independence of an independent agency, as established by Congress.” In that emergency docket case the justices stayed a ​​district court’s judgment reinstating three members of the Consumer Product Safety Commission who had been fired by Mr. Trump. The three liberals dissented.

Justice Kagan in her comments last week pointed to a case decided earlier this month off of the court’s emergency docket, McMahon v. New York. The Nine temporarily froze a district court order — the case has not been fully heard on the merits down below — requiring the government to reinstate Department of Education employees that Mr. Trump had fired. Once again, Justice Kagan joined Justices Jackson and Sotomayor in dissent.

Read more here.