The Volokh Conspiracy

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Supreme Court

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

Speaking at the Eleventh Circuit Judicial Conference, Justice Thomas echoes some of the concerns expressed by Justice Kavanaugh.


Just as Justice Kavanaugh spoke to the Fifth Circuit Judicial Conference today, Justice Thomas 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 Thomas's remarks focused more on the sorts of things political reporters care about (his comments about the culture of Washington, DC) than those things that actually provide information on the functioning and potential 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 those who care about law and the courts, the most interesting aspect of Justice Thomas's remarks may have been his comments about the "expedited docket"—or what many people call the "shadow docket." Like Justice Kavanaugh, Justice Thomas 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 injunctions) "short circuit our process," Justice Thomas remarked, adding "The way we're doing it now is not a thorough way" of doing it.

Justice Thomas 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 injunctions. The latter, Justice Thomas remarked, are something the Court will "have to address."

Justice Thomas also echoed Justice Kavanaugh's approval of the new oral argument process. The new format, which combines traditional open questioning with seriatim questioning by seniority, is "more thorough" and "polite," even if it means arguments last longer.

Among some of the other tidbits from his remarks that may be overlooked, Justice Thomas 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 Thomas said, was like a family. It "may have been a dysfunctional family" but it was a family, he said. Something like the leak of the Dobbs opinion draft would have been "unthinkable" during that time.

Justice Thomas 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 schools 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 Thomas will be the longest-serving justice in the Court's history.