Justice Ketanji Brown Jackson accused the Supreme Court this week of using unexplained emergency orders to hand President Donald Trump wins, warning the practice risks eroding public trust in the judiciary.
In a Yale Law School speech made public Wednesday, Jackson, a Biden appointee and frequent dissenter on emergency rulings, repeatedly called the Supreme Court’s use of the emergency docket “problematic” and argued the conservative majority’s decisions were sometimes “utterly irrational.”
The emergency docket, sometimes known as the interim or “shadow” docket, allows litigants to bypass typical court proceedings and seek immediate relief from the Supreme Court in the face of restraining orders and injunctions in the lower courts.
“Given the real world facts that a stay request asks the court to consider, the court’s stay decisions can, at times, come across utterly irrational,” Jackson said. “We cannot expect the public to have faith in our judicial system if, without clear explanation, we consistently greenlight harmful acts.”
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Jackson emphasized she was not seeking to “praise” or “bury” the emergency docket, but she warned its current use is straying from its historical role, which she said used to be more limited.
“There is a serious concern that the Supreme Court’s modern stay practices are having an enormously disruptive and potentially corrosive effect on the functioning of the federal judiciary’s usual decision-making process,” Jackson, who did not cite Trump by name during her remarks, said.
Jackson also argued the concept of equal justice was being cast aside because “savvy parties” knew how to bypass the lengthy court process and apply for emergency stays at the Supreme Court, unlike average people caught up in legal proceedings.
“If we are not careful, the emergency docket can and will become an end-run around the standard review process, a special avenue that certain privileged litigants can utilize selectively,” Jackson said.
Jackson contended that the modern-day use of the emergency docket “disrespects” lower court judges, allowing the high court to “routinely interfere with lower court cases,” a remark that comes as the Trump administration routinely blasts what it has described as “rogue” district court judges who have stymied the president’s agenda.
“A one-line stay grant that overturns a lower court’s contrary conclusion suggests that the judgment call was so easy that no deliberation or explanation is required, and that suggestion casts aspersions on the tedious work that our colleagues have done,” Jackson said.
The Trump administration has faced hundreds of lawsuits and adverse rulings in the lower courts. While the Department of Justice’s solicitor general’s office often does not elevate cases to the Supreme Court for emergency consideration, when it does, it has won most of the time.
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Through the emergency docket, the Supreme Court has greenlit Trump’s mass firings and curtailed nationwide injunctions. The high court has cleared the way for deportations and immigration stops sometimes criticized as controversial. The justices have also found that the government can, for now, discharge transgender service members from the military.
But Trump has not won out all the time. The justices required the administration to give more notice to alleged illegal immigrants being deported under the Alien Enemies Act and agreed with a lower court that the president improperly federalized the National Guard as part of his immigration crackdown in Chicago.
In August, Jackson lashed out at the Supreme Court majority for “lawmaking” from the bench in a dissent to an emergency decision to temporarily allow the National Institutes of Health’s cancellation of about $738 million in grant money.
“This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins,” Jackson wrote at the time.
Fox News Digital reached out to the White House and Supreme Court’s public affairs team for comment on Thursday.
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