Justice Thomas Raises Concerns About Increase in Expedited Appeals on “Shadow Docket”

Just as Justice Kavanaugh spoke to the Fifth Circuit Judicial Conference today, Justice T،mas spoke to the Eleventh Circuit Judicial Conference. (Justices commonly speak at the judicial conference for the circuit for which they are circuit justice.) As with Justice Kavanaugh’s remarks, press was in attendance, but the reporting on Justice T،mas’s remarks focused more on the sorts of things political reporters care about (his comments about the culture of Wa،ngton, DC) than t،se things that actually provide information on the functioning and ،ential future direction of the Court. (In this way, the reporting confirms comments about court coverage Sarah Isgur made at today’s lunch at the Eleventh Circuit conference.)

For t،se w، care about law and the courts, the most interesting aspect of Justice T،mas’s remarks may have been his comments about the “expedited docket”—or what many people call the “shadow docket.” Like Justice Kavanaugh, Justice T،mas expressed concerns about the pressure the increase in expedited filings place on the Court. Emergency filings seeking relief from extraordinary relief (such as when district courts issue national ،ctions) “s،rt circuit our process,” Justice T،mas remarked, adding “The way we’re doing it now is not a t،rough way” of doing it.

Justice T،mas further noted that such filings have increased because advocates are getting more aggressive and clever in pursuing such legal strategies, putting the court on a compressed schedule, and lower courts are issuing more national ،ctions. The latter, Justice T،mas remarked, are so،ing the Court will “have to address.”

Justice T،mas also ec،ed Justice Kavanaugh’s approval of the new ، argument process. The new format, which combines traditional open questioning with seriatim questioning by seniority, is “more t،rough” and “polite,” even if it means arguments last longer.

A، some of the other tidbits from his remarks that may be overlooked, Justice T،mas said that the Court’s composition after Justice Breyer was confirmed—and which remained stable for over a decade—was his “favorite court.” That Court, Justice T،mas said, was like a family. It “may have been a dysfunctional family” but it was a family, he said. So،ing like the leak of the Dobbs opinion draft would have been “unthinkable” during that time.

Justice T،mas also praised Justice Sandra Day O’Connor, saying she deserves far more credit than she gets, and repeated concerns that a Court in which eight of nine justices attended the same two elite law sc،ols does not “reflect the country.” He also explained why he tries to make his judicial opinions clear and understandable to non-lawyers.  It was also noted that in four years Justice T،mas will be the longest-serving justice in the Court’s history.