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Deadline: Legal Blog--Why Justice Brett Kavanaugh's bid to rebrand the shadow docket falls flat
If Supreme Court justices don’t want people to use the term “shadow docket,” then they should make their work less shadowy
If Justice Kavanaugh wants the Supreme Court to appear less corrupt, I would suggest they stop being corrupt.
— @jimrissmiller.bsky.social 2025-09-05T20:45:28.168Z
Why Justice Brett Kavanaugh’s bid to rebrand the shadow docket falls flat www.msnbc.com/deadline-whi...
https://www.msnbc.com/deadline-white-house/deadline-legal-blog/brett-kavanaugh-shadow-docket-interim-rcna229302
But words matter. If they didn’t, Justice Brett Kavanaugh wouldn’t feel the need to argue for less potent terminology, as the Trump appointee did on Thursday at a judicial conference in Memphis. The New York Times reported that Kavanaugh said “interim docket” is a better term, because not all the cases are emergencies and the decisions aren’t necessarily the final word. “It’s not real catchy, so I’m not sure it’ll bloom, but that’s the term,” Bloomberg Law reported Kavanaugh as saying.
The justice’s use of the word “catchy” is a reminder that he’s been fighting the linguistic battle for years. In a 2022 voting rights case, Justice Elena Kagan wrote in a dissent that the majority’s action was “one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument.” Kavanaugh responded in his own opinion in that case that the Obama appointee’s “catchy but worn-out rhetoric about the ‘shadow docket’” was “off target.”.....
Finally, it’s worth noting that Kavanaugh recently joined Justice Neil Gorsuch’s chiding of lower court judges for (in the Trump appointees’ view) defying the high court’s recent orders. Gorsuch wrote that that even when the justices weigh in on an interim basis, “it constitutes a precedent that commands respect in lower courts.” That led a district judge who was a target of that criticism to respond that he “simply did not understand that orders on the emergency docket were precedent.”
That exchange reinforces the more important point that it matters more what the justices do on the shadow docket than what we call it. On that note, lower court judges have recently criticized the high court for failing to explain itself sufficiently. One judge this week responded to Gorsuch’s criticism by writing that “the Supreme Court’s recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved.”
So at least from the perspective of the judges who must implement the law on a daily basis, the high court’s work can be opaque in ways that could even be called shadowy.
The justice’s use of the word “catchy” is a reminder that he’s been fighting the linguistic battle for years. In a 2022 voting rights case, Justice Elena Kagan wrote in a dissent that the majority’s action was “one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument.” Kavanaugh responded in his own opinion in that case that the Obama appointee’s “catchy but worn-out rhetoric about the ‘shadow docket’” was “off target.”.....
Finally, it’s worth noting that Kavanaugh recently joined Justice Neil Gorsuch’s chiding of lower court judges for (in the Trump appointees’ view) defying the high court’s recent orders. Gorsuch wrote that that even when the justices weigh in on an interim basis, “it constitutes a precedent that commands respect in lower courts.” That led a district judge who was a target of that criticism to respond that he “simply did not understand that orders on the emergency docket were precedent.”
That exchange reinforces the more important point that it matters more what the justices do on the shadow docket than what we call it. On that note, lower court judges have recently criticized the high court for failing to explain itself sufficiently. One judge this week responded to Gorsuch’s criticism by writing that “the Supreme Court’s recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved.”
So at least from the perspective of the judges who must implement the law on a daily basis, the high court’s work can be opaque in ways that could even be called shadowy.