Supreme Court Justice Ketanji Brown Jackson has launched a verbal critique against her colleague Justice Brett Kavanaugh, challenging the court's approach to emergency requests from former President Donald Trump. Speaking at a Washington event attended by lower court judges and lawyers on Monday, Jackson disputed Kavanaugh's assertion that the court has handled Trump and President Joe Biden similarly regarding the emergency docket, often called the shadow docket.
A Growing Concern Over Judicial Process
According to reports from CNN and The Washington Post, Jackson described the court's increased involvement in emergency cases as a significant issue. "This uptick in the court's willingness to get involved with cases on the emergency docket is a real unfortunate problem," she stated. "I think it is not serving the court or our country well at this point."
Kavanaugh's Defense of Court Actions
Kavanaugh defended the court's actions, arguing that it has approved several policies from the Biden administration through the emergency docket, such as maintaining access to the abortion drug mifepristone. "This is not a new phenomenon in the Trump administration," he said, as reported by The Washington Post.
Jackson countered by noting that most of the Biden administration's legal victories, including in the mifepristone case, simply upheld the existing legal status quo. In contrast, rulings favoring the Trump administration have led to major policy shifts. "What is happening now is the administration is making new policy, but then insisting that the new policy take effect immediately before a challenge about its lawfulness is determined," she explained.
Understanding the Emergency Docket
Emergency applications allow the Supreme Court to rule on cases without them fully passing through lower courts and standard procedures. The court's website indicates that most applications involve routine matters like time limit extensions or efforts to maintain the status quo pending final decisions.
Statistical Insights and Historical Context
A Brennan Center for Justice analysis reveals that the Supreme Court has sided with the Trump administration's emergency applications 80% of the time, often without oral arguments and with minimal explanation. This high success rate has prompted the Trump administration to file applications rapidly, resulting in 30 emergency orders in cases related to Trump's second administration as of last month. This figure is 11 fewer than the total issued during his first term.
In comparison, the Biden administration filed only 19 applications for emergency relief. Over 16 years, the Barack Obama and George W. Bush administrations combined filed just eight applications, according to an analysis by Georgetown professor Stephen Vladeck.
Broader Judicial Criticisms and Congressional Gridlock
Kavanaugh attributed the situation to congressional gridlock, which he said forces presidents to rely more on executive orders. "None of us enjoys this," he remarked, as cited by The New York Times, while emphasizing that justices must "grant or deny" any application they receive.
Other justices have also voiced concerns about the misuse of the shadow docket. Justice Elena Kagan criticized it last year for expanding Trump's executive power, particularly after his successful firing of federal workers without cause. In a dissenting opinion, she wrote, "Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation's separation of powers."
This ongoing debate highlights tensions within the Supreme Court over procedural fairness and the balance of power, with Jackson's remarks underscoring a call for greater judicial restraint in emergency cases.
