Supreme Court Justice Elena Kagan criticized the court's growing "shadow docket" of often controversial case that the court takes up on an emergency basis.
The emergency docket has expanded in recent years, a trend that Kagan lamented in an interview about the court's work Monday.
According to Kagan, the trend started during the Trump administration and has only continued under Biden.
"It's a symmetric problem: it doesn't really matter who's president," Kagan told a professor at New York University's law school. "Government and non-government parties started coming to the court in ever-increasing numbers."
The growth of the emergency docket has impacted the court's summer recess, which is becoming busier than ever.
Since its term ended in July, the court has continued to rule on controversial matters like Biden's student loan plan and his expansion of Title IX guidelines to protect transgender students.
Cases on the emergency docket typically do not include complete written opinions from the justices, who now issue about 60 full opinions per year. Kagan regretted that the court is spending a "ton more time" on the emergency docket these days.
"It's a very hard problem," Kagan said. "I don't think we do our best work in this way."
In June, the Supreme Court ruled that it was mistaken to accept an Idaho abortion case. Kagan cited the reversal as an example of "the things that can go wrong" when the court takes cases "without a good understanding of what a case is about."
"I thought it was a mistake from the get-go," she said.
Kagan also addressed the mounting calls from Democrat for Supreme Court reform, including an enforceable ethics code.
“It seems like a good idea in terms of ensuring that we comply with our own code of conduct going forward in the future,” Kagan said. “It seems like a good idea in terms of ensuring that people have confidence that we’re doing exactly that. So it seems like a salutary thing for the court."
Kagan, who usually votes with the liberal wing, also discussed the importance of cultivating relationships with her colleagues across the aisle.
She discussed her new interest in golf, something she shares with Brett Kavanaugh and John Roberts.
“Why should you care?" Kagan said. "If it leads to better decision making, if it leads to better conversations ... about the court's business, then it's a fantastic thing," she said.
Still, Kagan acknowledged many Americans are looking for more substantive reform: "But the proof is in the pudding ... It should not be sufficient for us to say, 'we go to the opera together.'"
