The Supreme Court's authority not to exercise its authority may be one of its greatest powers. The power to decline, to evade, to ignore has a kind of grandeur or glory. As important as an issue may be, the Supremes may avoid it merely by doing nothing. "True, we can do something, but we won't" saith the Court in many instances. Like God, the Supremes need not answer prayers; they may decide that the prayers of some aren't of sufficient significance, or are clumsily made, or may be answered at another time.
The Justices need not explain their decision not to decide. I think it's true that normally, they don't. And why should they? What does it matter? They owe us no explanation. Deciding not to decide means, in their case, that there's no way their decision not to decide may be found to be an improper decision.
In deciding not to decide, however, the Supreme Court may nonetheless decide the matter it says it will not decide. That's the case with its latest decision not to decide, its denial of the application in the matter of Trump v. Thompson. There, the minions of the person formerly known as President of the United States sought a stay of mandate and injunction pending review of a Court of Appeals decision finding no basis for that person's effort to avoid release of records concerning the January 6, 2021 storming of the Capitol on the grounds of executive privilege. By deciding not to accept that application, the Supremes in effect sanction the decision of the Court of Appeals.
It appears that all but one of the Justices agreed in the denial of the application. The one who did not, Justice Thomas, didn't write to explain why he would have accepted it. This isn't unusual, and perhaps to be expected in the case of a Justice who, judging from oral arguments to the Court, may be the most Silent Supreme in history.
Justice Kavanaugh took pains to tell us not why he agreed the application should be denied, but why he might accept such an application in the future. In other words, he thoughtfully explained why he might vote to accept an application by a former president to prevent disclosure of documents on the grounds of executive privilege.
He wrote that there could be circumstances where a former president would appropriately claim executive privilege even where a current president doesn't. A sitting president may improperly decline to assert executive privilege for partisan reasons, for example. According to Justice Kavanaugh, unlike the Supreme Court, a president may not decline to exercise authority without recourse or review. Perhaps Justice Kavanaugh is a zealous defender of the uniqueness of the Supreme Court's unlimited power to decline.
Also, according to Justice Kavanaugh, there may be circumstances where the holding that former presidents may not exercise executive privilege would cause the president and president's advisors to fail to freely discuss and consider possibilities for action; it would have a chilling effect, in other words, to the detriment of the nation.
He provides no concrete examples in support of this speculation, and it would seem most difficult to make such a case with regard to documents concerning what took place on January 6. 2021. Also, it's an unnecessary claim for him to make, as the Court of Appeals did not hold that a former president could not raise executive privilege, and as noted by the Supreme Court in denying the application, all the Court of Appeals said on the subject was non-binding dicta. It couldn't be relied on by any litigant.
So it's curious why he bothered to engage in this needless exercise. Perhaps as the most junior member for the Court, he feels a need to express himself at every opportunity. Perhaps he wants to provide some assurance to someone regarding his position on such matters in the future.
But my feeling is that when a Justice decides to, unnecessarily, enlighten us on why a matter might be accepted for decision in the future, that Justice should be required to explain why it shouldn't be accepted by the Court in the case at hand. There's something dubious, even disingenuous, about declining to explain why a decision is made while simultaneously signaling how a decision would be made in the future.
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