Justice Kavanaugh Tells Fifth Circuit that "Shadow Docket" Places Pressure on Supreme Court

Justice Brett Kavanagh spoke at the Fifth Circuit Judicial Conference in Austin, Texas today. According to a Bloomberg report, he discussed the “pressure” created by emergency filings, including appeals of nationwide injunctions or other extraordinary relief entered by lower courts. From a Bloomberg report:

Speaking Friday in Austin, Texas, Kavanaugh lamented the strain the expedited timeline places on the justices and said it leads to decreased output in other areas.

“This puts pressure on us,” he said during remarks at a US Circuit Court of Appeals for the Fifth Circuit conference. “We’re appellate judges; we don’t like making snap decisions or decisions without lots of briefs or lots of lower court opinions. It’s a challenge for us. I think we’re dealing with it as best as we can in an imperfect situation.”

Kavanaugh, in response to a question from moderator Fifth Circuit Chief Judge Priscilla Richman, said that in order to decide emergency issues the court must “take a peek at the merits, and that’s really hard.” This becomes circular, he said, “because we’re going to decide the merits a couple of years from now.” . . .

Resolving issues on the emergency docket is keeping the court from writing more opinions in merits cases, Kavanaugh said. . . .

“It occupies a lot of time,” he said.

It is interesting that he made these remarks at the Fifth Circuit judicial conference, as the Fifth Circuit has been responsible for more than its fair share of “shadow docket” filings.

Justice Kavanaugh also indicated that he thinks the Supreme Court should hear more cases—more like 75 per term instead of 60. As I have noted on this blog, Justice Kavanaugh often votes to grant certiorari in cases the Court ultimately denies.

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