Brett Kavanaugh says there's a good reason Supreme Court rulings can sometimes be so cryptic
https://www.politico.com/news/2025/09/04/brett-kavanaugh-supreme-court-rulings-cryptic-00545357Kavanaugh’s remarks to a judicial conference here came as the high court faces mounting criticism from legal scholars and even some lower-court judges for issuing vague edicts, with little or no explanation, on the court’s emergency docket — particularly in cases that challenge Trump administration policies.
Kavanaugh said the Delphic nature of some of the court’s decisions is often the product of differing views among the nine justices.
“It’s possible we screwed up, very possible, we’re human. But it’s also possible, and oftentimes is the case, that it’s the product of nine of us, or at least five of us, trying to reach a consensus or a compromise on a particular issue that might be difficult,” Kavanaugh told judges and lawyers attending the 6th Circuit Judicial Conference. “I’m fully aware that can lead to a lack of clarity in the law and can lead to some confusion, at times.”
“Consistency is a lot easier when it’s one person than when it’s nine. We try to be consistent. … We can do better. We’re always trying to do better,” said Kavanaugh, who joined the court in 2018 on an appointment from President Donald Trump.
This is *literally* what some district court judges have said in opinions! The bad things the Supreme Court is doing through the shadow docket aren’t too difficult to figure out if you take apart each piece of the legal process and describe what it is supposed to accomplish.
— Chris Geidner (@chrisgeidner.bsky.social) 2025-09-04T21:47:36.388Z
If a district court judge can’t tell from the court’s order what reasoning a majority used to reach it, there is no precedent.
— Chris Geidner (@chrisgeidner.bsky.social) 2025-09-04T21:52:41.594Z
Plus, shadow docket rulings are often rulings on the “likelihood of success†when the court fully reviews it, so, even if you can figure out the reasoning, what’s it mean?
For that secondary reason alone, the statement from Gorsuch (joined by Kavanaugh) is the first time I recall a justice even claiming in a court writing that a shadow docket order is a “precedent†in any ordinary sense.
— Chris Geidner (@chrisgeidner.bsky.social) 2025-09-04T21:54:33.970Z
But, that primary reason — acknowledged by Kavanaugh himself today! — is the reason why it is impossible for almost any shadow docket orders to create “precedent,†let alone “anarchy†that justifies Gorsuch (and Kavanaugh) accusing a district court judge *in another case* of defying their orders.
— Chris Geidner (@chrisgeidner.bsky.social) 2025-09-04T21:59:59.114Z
I wrote last week at Law Dork about how troubled I was by Gorsuch and Kavanaugh’s writings, along with Barrett’s writing, in the NIH grants cuts case: www.lawdork.com/p/trump-scot...
— Chris Geidner (@chrisgeidner.bsky.social) 2025-09-04T22:03:05.285Z
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