Justice Ketanji Brown Jackson slammed the conservative-majority Supreme Court for waving through some of Donald Trump’s more extreme policies while legal challenges against them are still playing out in the courts.
A legal event in Washington, D.C., on Monday highlighted the internal division in the nation’s highest court over the use of the so-called “shadow docket” and a string of decisions pandering to the president.
During the gathering of lawyers and judges at the federal courthouse, Jackson, nominated by President Joe Biden in 2022, claimed that the Supreme Court’s swift handling of Trump’s emergency cases has led to a “warped” process that is an “unfortunate” departure.
Her complaint was rebuffed by conservative Justice Brett Kavanaugh, who was appointed to the court during Trump’s first term and insisted nothing had changed.
Under the court’s emergency docket system—referred to by critics as the “shadow docket” for its lack of transparency compared with the court’s regular cases—justices have signed off on the Trump administration’s ban on transgender soldiers in the military, the firing of federal workers to cut costs, an increase in hard-line immigration enforcement, and an executive order to dismantle the Department of Education.
The emergency cases generally do not feature arguments and justices often do not explain their rationale for the rulings, which often happen before lower courts have finished examining the cases.
The Supreme Court has backed the Trump administration in 80 percent of these emergency cases, a far higher share than during the Biden administration.
“This uptick in the court’s willingness to get involved with cases on the emergency docket is a real unfortunate problem,” Jackson said at the event. “I think it is not serving the court or our country well at this point.”
Jackson did not specify which emergency cases she was referring to.
There have been 25 wins in emergency dockets presented by the administration in Trump’s second term, leading the court’s three liberal justices to claim the conservative majority in SCOTUS is working in favor of Republicans.
Countering Jackson’s argument, Kavanaugh claimed that the Supreme Court had treated Trump similarly to Biden. He cited Biden-era policies that were approved, including military vaccine mandates and access to the abortion drug Mifepristone.
“This is not a new phenomenon in the Trump administration,” Kavanaugh said.
He insisted there were now more emergency cases presented to SCOTUS “because it’s difficult to get legislation through Congress.”
Jackson argued Biden’s emergency docket victories usually upheld the legal status quo, while Trump was offering new initiatives that potentially changed the law.
“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,” Jackson said.
She pointed out that the Trump administration was now pushing through more cases on an emergency basis because “the Supreme Court has shown a willingness to grant these emergency motions.”
The two eventually found common ground in their conversation at the event. Kavanaugh said “none of us enjoy” the shadow docket trend, adding, “We have to have the same position regardless of who is president.”
