It’s been an active few months for the Supreme Court’s so-called shadow docket as the Trump administration seeks to push through its legally dubious agenda via emergency appeals. And one of the justices is raising a key concern with the process.
On Thursday, Elena Kagan, one of three Democratic-appointed justices, called out the court for its practice of issuing unsigned orders with little to no explanation for cases on the emergency docket, also known as the shadow docket.
“The need to explain things,” the Obama appointee told the audience at the 2025 Ninth Circuit Judicial Conference in Monterey, California, is likely the “most important” issue related to the emergency docket.
“What we started doing when we started doing these things is just issuing orders,” Kagan said. “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,” she continued. “That’s what courts do. They’re supposed to explain things to litigants. They’re supposed to explain things to the public generally.”
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
As the court takes up more and more cases via the emergency docket, Kagan said the justices have a “real responsibility” to clarify the reasoning behind their decisions. “I don’t mean like we should write 50-page magnum opuses,” she noted. “I think, you know, one or two or three pages would do.”
The Trump administration has sought relief in more than a dozen emergency docket appeals so far this year, with the Supreme Court’s Republican-appointed majority granting many of them. Though some justices have written or joined dissents to explain their disagreement with some of the court’s decisions, the majority has not often explained its reasoning.
As Kagan suggested on Thursday, the absence of explanation can be confusing for litigants, lower courts and the public. She highlighted the court’s recent decision to allow the Trump administration to move forward with its efforts to dismantle the Education Department as litigation on the matter continues.
“A casual observer might think, ‘Oh, the president does have legal authority to dismantle the Education Department,’” Kagan said. She pointed out that the solicitor general, who represents the federal government in cases before the Supreme Court, “didn’t even present that to us as an argument.”
The merits of the case “weren’t even before us,” Kagan said. Instead, a variety of remedial issues, including standing and whether the appeals court that issued the injunction had jurisdiction, were at the heart of the appeal.
“And we didn’t say anything about any of those things,” Kagan said. “So that court that issued that order — like, what’s that court supposed to think? …. It’s just impossible to know.”
