Justice Ketanji Brown Jackson this week sharply criticized the Supreme Court’s handling of its emergency docket, which delivered a series of victories to President Donald Trump in the first year of his second term.
Jackson told law students that those rulings undermine the high court’s credibility with the public, in part because they are often issued with little explanation despite their sweeping impact on millions of people.
“The court's stay decisions can, at times, come across as utterly irrational,” Jackson said during a speech at Yale Law School Monday that was posted online Wednesday. “The court has left confusion in its wake. … There is a serious concern that the Supreme Court's modern stay practices are having an enormously disruptive and potentially corrosive effect.”
Rulings on the Supreme Court’s emergency docket — often dubbed the “shadow docket” by critics — are typically brief and usually do not include the sort of detailed legal reasoning and conclusions the high court issues in connection with decisions on its regular or “merits” docket.
Jackson faulted her fellow justices for often forcing the public and lower-court judges to rely on “scratch-paper musings” accompanying emergency-docket actions and then excoriating judges who fail to divine the opaque rulings’ intended meaning.
The Biden appointee called on her colleagues to adopt a new approach to emergency appeals, considering first the real-world impact of blocking a lower-court action and only then making an assessment of the legal merits of the underlying litigation.
Such a shift may have produced different outcomes in a series of emergency appeals the justices wrestled with last year, including cases where the high court allowed the Trump administration to fire hundreds of thousands of federal employees, cancel billions of dollars in federal grants and contracts, and end legal status for millions of immigrants.
Jackson also took issue with the Trump administration’s arguments that any time the president’s policy goals are blocked, that amounts to the sort of irreparable harm that can justify the Supreme Court stepping in.
“The president of the United States, although he may be … harmed in an abstract way by not doing what he wants to do, he certainly isn’t harmed if what he wants to do is illegal,” Jackson said. “It takes time to figure that out.”
Conservative justices, such as Samuel Alito and Brett Kavanaugh, have argued publicly that the high court has little choice but to wade into such emergency appeals because more of them are being brought to the court.
But Jackson dismissed those assertions and said the court is encouraging more by granting so many.
“I disagree with some of my colleagues who have made public statements suggesting that the court really has its hands tied, or that this is a function of a lot more of these cases being filed,” she said.
Jackson also took a swipe at Kavanaugh’s attempt to brand the court’s emergency docket as the “interim docket,” a framing that she suggested downplays the need for urgency that she contends should be critical to the high court’s decision-making.
“I adamantly reject any effort to normalize a process whereby the Supreme Court actively superintends matters that are pending in the lower courts. There is no such thing as an interim docket,” she said.
While the Trump administration scored an impressive number of wins at the Supreme Court over the past year or so, particularly on the emergency docket, the justices have handed Trump some major defeats in recent months. They include a ruling striking down his signature “Liberation Day” tariffs and a decision blocking his drive to use the National Guard to quell anti-ICE protests.
Although Jackson has used dissents to air points similar to those she made at Yale this week, during an exchange with Dean Cristina Rodriguez, Jackson did not respond directly to a question about whether she had other interactions with her colleagues on the emergency docket issue.
As Jackson argued that the court has dramatically departed from its traditionally stingy attitude on emergency relief, she delivered several legal zingers, jabbing at her conservative colleagues for giving short shrift to the court’s past approach.
“I don’t know what happened to that practice, but I prefer it to what we are doing now,” Jackson said, before adopting one of the conservative justices’ most favored formulations. “I feel strongly that we need to stick with that history and tradition.”
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