Justice Kagan reflects on dissent, urges caution in use of emergency docket

MONTEREY - U.S. Supreme Court Justice Elena Kagan, a day after writing a withering dissent in a decision allowing President Donald Trump to fire members of a consumer safety commission, adopted a philosophical approach about her frequent losses during a Thursday speech to the 9th Circuit Judicial Conference.

"I find it frustrating, I find it disappointing, I find it sometimes even maddening," she told the audience of judges and lawyers on the final day of the conference in Monterey. "This sometimes happens in cases I feel strongly about."

"I think they are all operating in good faith," said Kagan, part of a three-person minority of justices on the court appointed by Democratic presidents. "You just sort of have to turn the page.

"Yesterday I was frustrated and today I am going to engage with my colleagues who I admire ... and try to figure out what the next case is," Kagan added.

The justice, an appointee of President Barack Obama, said the court "should be cautious about acting on the emergency docket," because the justices get less briefing, no oral arguments, and no consultation before making major rulings - a departure from its handling of cases on the merits docket.

"All of those things are conducive to good decision making," she said. "And so one should be hesitant about making decisions without any of those things ... unless we really have to."

The court's majority has used the emergency docket often this term in response to applications by the Trump administration and has consistently ruled in its favor this year, often on motions to stay lower court orders or injunctions.

Kagan emphasized "the need to explain things," which she said is often lacking in emergency or shadow docket orders. "The orders themselves don't tell anyone about why we've done what we've done."

That puts lower courts in a bad position when trying to determine what the court's rulings mean, or what they do not mean.

She cited a Supreme Court order last week granting a stay of a Massachusetts district judge's order temporarily blocking mass layoffs at the Department of Education, but Kagan said the order didn't say anything about the issues presented in the briefs. McMahon et al. v. New York et al., 24A1203 (S. Ct., filed June 6, 2025).

"The court is supposed to explain things to litigants and to the public generally. We don't need to file 50-page magnum opuses," Kagan added. "One or two pages would do."

Kagan has sometimes used her remarks at the 9th U.S. Circuit Court of Appeals conference to criticize the Republican majority for its decisions.

Last year, for example, she blasted her colleagues for trying to "use individual cases to advance some broader agenda or broader project to change our governing structure or our society."

Kagan, in her July 2024 remarks at that year's conference, described the court majority's decision to reverse a 40-year-old precedent to reverse Chevron deference and give judges more authority to reject interpretations of statutes by federal administrative agencies as an act of "hubris squared." Loper Bright Enterprises v. Raimondo, 2024 DJDAR 5966 (S. Ct., filed Nov. 10, 2022).

But on Thursday, she spent little time criticizing her colleagues and instead voiced concern about threats of violence against judges, including those against her fellow justices on the Supreme Court in the wake of the court's 2022 decision reversing Roe v. Wade.

"Judges are fair game for all kinds of criticism, strong criticism, pointed criticism, but vilifying judges in that way is a step beyond and ought to be understood as such," Kagan said.

She also echoed a May statement by Chief Justice John G. Roberts Jr. that disagreeing with a judge's opinions is not grounds for impeachment and also blasted statements that government officials should defy court orders.

"That's just not the way our system works," Kagan said.