In a recent survey, only 12 out of 65 Federal Judges agreed that the U.S. Supreme Court makes appropriate use of the emergency docket. The emergency docket refers to the process by which a litigant can bypass the courts of appeals and go straight to the U.S. Supreme Court. There have been far more emergency appeals since Pres. Trump assumed power. The emergency docket is sometimes referred to as the “shadow docket.” Prior to Trump, the Supreme Court rarely granted any orders requested on an emergency basis. But, now it has become very common to grant those emergency appeals.

In the survey, Federal Judges described the Supreme Court’s emergency orders as “mystical,” “overly blunt,” and “incredibly demoralizing.” The latter comment likely refers to the very extensive, detailed order issued at the trial court level, only to be overruled by a one page order from the Supreme Court. What is the point of conducting lengthy research if the Supreme Court will overrule you with one or two paragraphs?

The Judges responded to the survey anonymously. The survey found:

  • Twelve out of 65 judges agreed with this statement: “The Supreme Court has made appropriate use of the emergency docket since President Trump returned to office.” Forty-seven disagreed, and six were neutral.
  • Asked what effect the emergency docket had on the public’s perception of the judiciary since Trump returned took office, 42 judges “said caused harm,” ten judges “said no effect,” and two “said an improvement.”

The latter comment refers to the implicit understanding of every Judge: that civility in the courtroom often depends on a thin veneer of respect for the court. If you lose that respect, then every trial, every hearing may result in a shouting match or worse.

Over 400 Judges

The New York Times conducted the survey. It sent the survey questionnaires to over 400 U.S. Judges. Among the Judges who responded, 28 were nominated by Republican presidents and 37 were nominated by a Democratic president.

The Times acknowledged that as a sample size, 65 is not a large number. But, the paper noted that for so many to be critical of the Supreme Court is unusual. I agree. Indeed, my opinion, it is surprising that as many replied as they did. Judges, regardless of the party, tend to be very conservative and cautious in discussing these sorts of issues – anonymously or not. See ABA Bar Journal report here for more information.