Justice Ketanji Brown Jackson warns of a shadow docket that threatens public trust
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Justice Ketanji Brown Jackson accused the Supreme Court this week of using emergency orders to give President Donald Trump a victory without sufficient explanation, warning the practice risks eroding public trust in the judiciary.
In a Yale Law School speech made public on Wednesday, Jackson, a Biden appointee who often opposes emergency rulings, repeatedly called the Supreme Court’s use of the emergency docket “problematic” and said the dissenting majority’s decisions are sometimes “absolutely absurd.”
The emergency docket, sometimes known as the temporary or “shadow” docket, allows litigants to bypass regular court proceedings and seek immediate relief from the Supreme Court when faced with restraining orders and injunctions in lower courts.
“Given the real-world realities of a stay request for the court to consider, the court’s stay decisions can sometimes seem unreasonable,” Jackson said. “We cannot expect the public to have faith in our justice system if, without clear explanation, we constantly highlight harmful actions.”
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Supreme Court Justice Ketanji Brown Jackson, the first black woman on the nation’s highest court, speaks at the 60th Anniversary of the 16th Street Baptist Church bombing on Sept.15, 2023, in Birmingham, Alabama. (Butch Dill/Pool/Getty Images)
Jackson stressed that he did not want to “glorify” or “bury” the emergency room, but warned that its current use deviates from its historical role, which he said was too limited.
“There is serious concern that the current Supreme Court sitting practices are having a profoundly disruptive and potentially harmful effect on the normal functioning of the judicial decision-making process,” said Jackson, who did not name-drop Trump during his comments.
Jackson also argued that the concept of equal justice is being sidelined because “experienced parties” know how to bypass the lengthy court process and apply for emergency stays at the Supreme Court, unlike ordinary people held in court.
“If we’re not careful, the emergency docket can and will be the only formal review process, a special route that certain privileged defendants can use selectively,” Jackson said.
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The Supreme Court building is seen in Washington, DC (AP/Jon Elswick)
Jackson argued that today’s use of the emergency docket “disrespects” lower court judges, allowing the high court to “constantly interfere in lower court cases,” a comment that comes as the Trump administration regularly blasts what it described as “obstinate” district court judges who have stalled the president’s agenda.
“The one-line stay grant that overturns the lower court’s contrary conclusion suggests that the ruling was so simple that no discussion or explanation was necessary, and that suggestion is an insult to the painstaking work done by our colleagues,” Jackson said.
The Trump administration has faced hundreds of lawsuits and negative rulings in lower courts. Although the Justice Department’s attorney general’s office does not usually elevate cases to the Supreme Court for emergency review, when it does, it wins most of the time.
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John Sauer, then assistant special attorney for the Louisiana Department of Justice, speaks during the hearing. (Al Drago/Bloomberg)
In an emergency docket, the Supreme Court greenlighted Trump’s mass shootings and weakened statewide laws. The high court has paved the way for deportations and immigration freezes that are sometimes criticized as controversial. The judges also found that the government, in the meantime, cannot exempt transgender service members from the military.
But Trump was not always successful. The justices required the administration to give more notice to suspected illegal immigrants who are being deported under the Alien Enemies Act and agreed with a lower court that the president improperly deployed the National Guard as part of his immigration crackdown in Chicago.
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In August, Jackson criticized the Supreme Court majority for “legislating” on the bench against the decision. urgent decision temporarily authorizing the National Institutes of Health’s rescission of approximately $738 million in grants.
“This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. It seems we have two: that, and this Administration always succeeds,” wrote Jackson at the time.
Fox News Digital contacted the White House and the Supreme Court’s public affairs team for comment Thursday.
