Supreme Court Justice Elena Kagan on Thursday publicly chided her conservative colleagues for deciding — at least temporarily — nearly a dozen consequential disputes over President Donald Trump’s overhaul of the federal government without fulsome hearing or debate and often with little public explanation.
“My own view is: be cautious,” Kagan told a conference of federal judges from the Ninth Circuit about a recent wave of rulings on the so-called emergency docket.
The cases in question — involving funding freezes, federal worker layoffs and firing of members of independent agencies — reached the court over the past six months when the justices were asked for snap judgments on the decisions of a lower court, without extensive briefing or oral argument, in an effort to protect a party from alleged imminent irreparable harm.
In nearly every case, the court’s conservative majority has sided with the Trump administration. Most recently on Wednesday, it allowed the president to terminate three Democrat-appointed members of the Consumer Product Safety Commission. The court’s order offered a three-sentence explanation.
“Courts are supposed to explain things, to litigants, to the public generally,” Kagan said. “As we have done more and more on the emergency docket, there becomes a real responsibility to explain things better.”
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The justice was cautious in addressing her peers, but she did suggest that elements of “good decision making” were lacking in many recent emergency rulings.
“We have standards for that,” she said. “I think we should apply those standards with care.”
Kagan pointed to the court’s decision last week allowing Trump to move forward with a massive restructuring of the Department of Education, including sweeping staff reductions. The court’s majority did not explain its decision.
“A casual observer might think we said the president has the authority to dismantle [the agency]…. That [question] wasn’t even before us,” she said. “It puts the court in a very difficult situation.”
Kagan also lamented the proliferation of separate opinions across the bench — when many of her colleagues write their own concurring opinions in major cases instead of letting the majority opinion speak for itself.
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She said she fears too many writers — “just one or two guys trying to tell you they would have written it differently” — in each case “dilutes” the message of the court.
“My view is the court has many members, but it is an institution,” she said. “It is a court. It speaks best when it speaks as a court, rather than a place when nine people get together and write individually.”
As for the frequent occasions in which Kagan is in dissent vis-à-vis the six-justice conservative majority, she said, “I don’t enjoy that. I find it frustrating.I find it disappointing. I find it sometimes maddening.”
“How do I deal with that?” she asked. “Have to turn a page… You lose one day, then you continue to engage the next day.”
