Justice Ketanji Brown Jackson this week sharply criticized the Supreme Court’s handling of the emergency situation that has given President Donald Trump several victories in the first year of his second term.
Jackson told law students that these decisions undermine the high court’s credibility among the public, as they are often issued with little explanation, despite their widespread impact on millions of people.
“The Court’s adjudication decisions can sometimes seem completely illogical,” Jackson said during a speech at Yale Law School on Monday. posted online Wednesday. “The Court has left a trail of confusion in its wake. … There is a serious concern that the Supreme Court’s modern adjournment practices are having a highly disruptive and potentially corrosive effect.”
Decisions on the Supreme Court’s emergency docket – often called the “shadow docket” by critics – are generally brief and usually do not include the kind of detailed legal reasoning and conclusions that the High Court issues with respect to decisions on its regular or “merits” docket.
Jackson blamed his fellow judges for frequently forcing the public and lower court judges to rely on “scratch-paper thinking” with emergency-docket actions and then aggravating judges who fail to understand the intended meaning of opaque rulings.
The Biden appointee called on his colleagues to adopt a new approach to emergency appeals, first considering the real-world impact of halting lower court action and only then assessing the legal merits of the underlying litigation.
Such a change would have produced different results in a series of emergency appeals that judges had to grapple 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 objected to the Trump administration’s arguments that any time the president’s policy goals are blocked, it constitutes the kind of irreparable harm that could justify Supreme Court intervention.
Jackson said, “The President of the United States may … be harmed in an abstract way by not doing what he wants to do, but he is certainly not harmed if what he wants to do is illegal.” “It takes time to figure it out.”
Conservative justices such as Samuel Alito and Brett Kavanaugh have argued publicly that the high court has little choice but to consider such emergency appeals as more of them are being brought to the court.
But Jackson rejected those claims and said the court was encouraging more by allowing so many.
He said, “I disagree with some of my colleagues who have made public statements suggesting that the court’s hands are actually tied, or that it is a function of filing too many of these cases.”
Jackson also took a dig at Kavanaugh’s effort to brand the court’s emergency docket As “interim docket”” One framing he suggested minimizes the need for urgency which he argues should be key to High Court decision-making.
She said, “I strongly reject any attempt to generalize the process whereby the Supreme Court actively monitors cases pending in lower courts. There is no such thing as an interim docket.”
While the Trump administration has won an impressive number of victories at the Supreme Court over the past year, particularly in emergency cases, the justices have handed Trump some major defeats in recent months. They include a decision rescinding his signature “Liberation Day” tariffs and a decision blocking his campaign to use the National Guard to suppress anti-ICE protests.
Although Jackson used the issue of dissent he made at Yale this week during a conversation with Dean Christina Rodriguez, Jackson did not directly answer a question about whether he had had other conversations with his colleagues on the emergency docket issue.
As Jackson argued that the court had dramatically retreated from its traditionally stingy attitude on emergency relief, he delivered several legal vacillations, attacking his conservative colleagues for undermining the court’s past approach.
Before adopting one of the most favored formulations of conservative judges, Jackson said, “I don’t know what happened to that practice, but I like what we’re doing now.” “I feel strongly that we need to stick with that history and tradition.”
