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WASHINGTON — Less than a month ago, Justice Elena Kagan suggested the Supreme Court consider dialing back its review of significant cases on its controversial emergency docket.
To a group of judges, Kagan lamented the "relentless" filing of emergency appeals. "We've gotten into a pattern where we're doing too many of them."
The court's emergency docket — the "shadow docket" — is where the justices deal with questions that need resolution faster than the months it can take to submit briefs, hear oral arguments and draft formal opinions on its regular docket.
The cases usually deal with the narrow question of what will happen as that underlying legal process plays out. But the orders can have significant and immediate real-world consequences.
"There's just no disputing that this has been a busier summer for emergency applications, both by volume and by significance, than any summer we've seen in a long time — if ever," said Steve Vladeck, a CNN Supreme Court analyst and professor at the Georgetown University Law Center, who says the court is essentially inviting these cases by issuing emergency rulings with more impact.
"It seems pretty clear that there's a disconnect between the justices' public comments expressing concern and their behavior when these applications reach them," said Vladeck, who wrote a book on the issue, "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic."
"Given that the court continues to grant emergency relief in contexts in which it didn't until recently — and given that there's virtually no downside to seeking emergency relief — it's effectively open season for aggressive lawyers," he said.
In all, there are 18 emergency cases waiting for an answer from the high court — though 13 of those raise three substantially similar legal questions.
Even if no additional emergency applications land this summer, Vladeck says, the court is already on track to exceed its caseload of the past several summers – including in 2020, when the justices juggled a string of controversial COVID-19-related cases.
Title IX dispute
The court's latest emergency order landed Friday, when the justices blocked a Biden administration proposal to shore up civil rights protections for transgender and pregnant students. The new rule, challenged by 10 conservative states, would bar discrimination on the basis of a student's gender identity.
Combined with a series of lower court decisions, the rule is now on hold in about half the country.
Perhaps underscoring the thorny and often politically heated questions in play on the emergency docket this month, the court has at times been slow to resolve the disputes.
Since mid-2023, the court has needed about 20 days, on average, to resolve significant emergency cases – not including those involving capital punishment — according to a CNN analysis. But it took the justices 25 days to resolve a recent emergency challenge over Biden's transgender rule.
It's been 29 days since West Virginia filed the first of several appeals seeking to halt Biden's power plant rules.
In that case, Republican states and industry groups are challenging an Environmental Protection Agency rule that would compel existing coal and new natural gas power plants to either cut or capture 90% of their climate pollution by 2032. A decision in that case could come as soon as this week.
Biden's student debt plan in jeopardy again
The Department of Education, meanwhile, has asked the justices to lift a court order blocking a Biden plan to slash monthly student loan payments and quicken the path to forgiveness — a central promise of his 2020 presidential campaign. A decision in that case could also come within days.
It's possible the Supreme Court will move some of the pending disputes to its regular, merits docket when the court reconvenes in October for a new nine-month term, scheduling arguments and handing down formal opinions.
In recent years, some of the court's biggest cases originated on the emergency docket.
In June, for instance, the court handed down a 5-4 decision halting a Biden environmental rule intended to reduce smog and air pollution in a case that arrived on the shadow docket.
But while the practice of moving the emergency cases to the regular docket has picked up in recent years – and is widely seen as a response to criticism – it can have drawbacks.
Speaking at a judicial conference in Sacramento in late July, Kagan suggested that the court may have acted too hastily when it took up a request from Idaho to allow it to enforce a Biden administration rule requiring emergency rooms to perform abortions when the health of the pregnant woman is at stake. By the time it reached the Supreme Court for argument the facts of the case — usually developed by lower courts — were unclear.
In late June, the court handed the issue back to lower courts, punting for now on a review of the underlying legal questions raised.
Although some of the justices may be hesitant to resolve the emergency cases before the questions involved have been fully figured out, there are times when it must, Kagan said. That's especially true in situations in which a lower court has blocked a law or policy nationwide.
"It's a very difficult question as to how exactly we should approach these ever-increasing number of emergency petitions," she said. "But more and more it's not only the argued cases, but that work that is the Supreme Court's docket."
Contributing: Ella Nilsen
