Speaking at the Eighth Circuit Judicial Conference this week, Justice Brett Kavanaugh addressed concerns about the Supreme Court's failure to issue opinions with "shadow docket" orders. While explanatory opinions could be useful, he explained, rushing out opinions could increase the risk of error.
Kavanaugh . . . said there can be a "danger" in writing those opinions. He said that if the court has to weigh a party's likelihood of success on the merits at an earlier stage in litigation, that's not the same as reviewing their actual success on the merits if the court takes up the case.
"So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that's not going to reflect the final view," Kavanaugh said.
Kavanaugh said members of the court have differing thoughts on when to issue opinions for those cases on the so-called shadow docket, or when parties petition the justices for emergency relief on rulings made by lower courts. He said those cases will "get back to us soon enough."
