Presidential Commission on the Supreme Court of the United States
such orders and the quality of the processes that precede them generally counsel against giving dispositive weight to decisions reached on an emergency footing.[53] Without clarification, uncertainty about the precedential effect of emergency orders can breed confusion about the content of the law for the lower courts, for relevant parties, and for the public.
D. General Proposals
Commentators have made various proposals aimed at addressing the concerns described above while acknowledging the reality that emergency orders are, and will remain, a necessary component of the Court’s work.
1. Giving Reasons
Specific reforms proposed in response to concerns about inadequate transparency—and the accompanying risk of an appearance of inconsistency, arbitrariness, or bias—urge the Court to explain the majority’s reasoning in emergency orders involving matters of great public debate. A different approach would place a premium on providing an explanation whenever the Court is undoing reasoned rulings in the lower courts.[54] Another proposal would urge the Justices to disclose their votes in emergency orders.[55]
The aim of such explanations and disclosures would be to provide guidance to parties, lawyers, and lower court judges; to allow the public to know the role of each Justice in granting or denying an emergency order; and to ensure that especially consequential decisions benefit from the rigor and discipline associated with reasoned opinions.[56] The explanations need not be lengthy, nor does anyone suggest that opinions need to be written in every case. Instead, the goal is to enable observers to understand the bases for the Court’s most significant rulings—to follow the legal trail through each decision and from one decision to the next. Proponents of reform argue that, at a minimum, the Court should clearly articulate the test it is using to assess the application for emergency relief and indicate how (or whether) it applied each prong of the test.[57]
The category of “important” cases in which explanation may be most valuable is not self-defining; reasonable minds will differ about that threshold. Even short opinions take time to write, moreover, and the suggestion that the Court indicate how it applied each prong of a four-part test may be in tension with the suggestion that the writing need not be lengthy. Indeed, there may be an unavoidable tradeoff between the explanatory benefits of any given opinion and the costs of producing it—including not only the time and effort spent preparing the opinion, but also the possibility of committing the Justices to positions they have not yet
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