NEW YORK, Sept 9 (Askume) – Justice Elena Kagan said it would be better for the U.S. Supreme Court to spend less time adjudicating urgent cases.
“That’s a very tough question,” Kagan said Monday in an hour-long interview with a professor at New York University School of Law. “I don’t think we can do our best work that way.”
An emergency case, often called a “shadow case”, is where a judge considers issues (some even controversial) that litigants want resolved quickly, sometimes before lower courts issue rulings that then apply nationwide.
In many cases, judges increasingly rely on this process to render decisions without the usual deliberation process, which includes public oral arguments and a full written decision.
Kagan, who has been on the bench since 2010 and is part of the court’s three-member liberal wing, said the court decides only about 60 cases per year, less than half the norm in the 1980s, when she clerked there.
He said cases there began to increase during the Trump administration, when the U.S. Deputy Attorney General’s office decided they could not wait until former President Trump was elected .
“It’s a case of symmetry: It doesn’t matter who the president is,” Kagan said. “More and more governmental and non-governmental groups are starting to come to the court.”
He said the lower court’s opinion reflected a thoughtful review of the factual and legal issues and “really helps us conduct our business.”
One case on the shadow list involves a near-total ban on abortion in Idaho.
In June, the court temporarily cleared the way for women there to have abortions where there are health risks , reinstating a lower court judge’s ruling that had blocked the ban.
The majority concluded that the Court’s “unnecessary acceptance” of the case meant it should not have agreed to consider the case. Kagan wrote a concurring opinion .
“I felt from the beginning that this was a mistake,” he said Monday. “It’s a reminder that if you approach a case without understanding its contents, some things can go wrong.”
Kagan also suggested the Court adopt some way to enforce the code of conduct adopted the previous year , as this would help increase public confidence in the Court.
Less than half of Americans approve of the way the Supreme Court works , according to at least four surveys conducted this year.
Kagan also recalled the friendship and shared love of opera between the late Justices Antonin Scalia and Ruth Bader Ginsburg, who had diametrically opposed ideologies on many issues, and asked the current justices if they had a similar interest in bridging differences.
He said he recently took up golf and has discussed the sport with Chief Justice John Roberts and Justice Brett Kavanaugh, both of the court’s conservative wing.
“Why should you care about it?” Kagan asked. “If it leads to better decisions, if it leads to better conversations about how the courts work, that’s great. But the evidence is thin… should we say, ‘Let’s go to the opera together’?
