Justice Brett Kavanaugh defended how the Supreme Court is handling an unprecedented number of emergency appeals from the Trump administration, saying that as presidents push the limits of their power, courts will have to respond.
Speaking before a group of lawyers and judges Thursday in Kansas City, Missouri, Kavanaugh said presidents in both parties, stymied by inaction in Congress, have relied more on executive orders “to get things done.” That’s led to more legal challenges, Kavanaugh said, which inevitably draw in the Supreme Court to determine whether the new regulation can take effect, at least temporarily, while the legal challenges play out.
So far, the court has been inclined to say yes, agreeing to allow a number of President Trump’s high-profile executive orders to take effect while the lower courts review the merits, such as orders to fire members of independent federal agencies, freeze certain federal grants and plan layoffs at nearly every federal agency.
Asked about criticism that the court isn’t doing enough to explain its reasoning in some of those emergency cases, Kavanaugh said the court has written more than it has in the past. He said the court also had made some internal changes in the past five or six years “to try to get the right answer,” including scheduling emergency oral arguments, as in the recent case challenging nationwide injunctions.
He said he was a “fan of more process” and mentioned two recent cases, including the president’s removal power in independent agencies, where he unsuccessfully urged the court to step in and decide the underlying issue before it went through the lower courts.
Kavanaugh’s hour-long remarks came in a conversation with U.S. District Judge Sarah Pitlyk, one of his former law clerks, at the U.S. Court of Appeals for the 8th Circuit’s judicial conference. It’s one of several judicial conferences this summer that will feature different justices.
Last week, Justice Elena Kagan spoke to the California-based 9th Circuit Court of Appeals, where she urged the court to be more cautious with its handling of the so-called emergency docket. She also said that while she finds some of the court’s recent decisions “frustrating” and “sometimes even maddening,” prompting fierce dissents, she believed her colleagues were “all operating in good faith.”
Kavanaugh shared a similar sentiment about the other justices, saying even in disagreement, “they’re thoughtfully engaging in difficult issues,” and he believed it was “a sign of strength when there are different views expressed.”
“The collegiality of the Supreme Court is very strong, strong to this day,” he said. “We all look out for each other. We think the other eight are patriots and are good people.”
His wide-ranging conversation with Pitlyk was at times personal and humorous, touching on everything from lessons he’s taken from sports to some of his favorite opinions in recent terms. He said he’s aware of criticism of the court, but that “criticism is part of the job.”
Like the referees for high school sports, Kavanaugh said, as a justice, “you have to recognize and know thick skin and criticism comes with the territory.”
“Did you ever walk out of a game and say, ‘our team lost, but the refs were great?'” Kavanaugh said, to laughter from the audience. “That informs my judging, too.”
