Last night, at an event honoring the late Judge Thomas Flannery of the U.S. District Court of Washington, D.C., Justices Ketanji Brown Jackson and Brett Kavanaugh found themselves on opposite sides of one of the Supreme Court’s most controversial procedural tools: the so-called shadow docket.
When asked about the emergency docket by moderator Judge Paul Friedman, Justice Jackson was not subtle about her concerns.
“The administration is making new policy … and then insisting the new policy take effect immediately, before the challenge is decided,” Jackson said, drawing applause from the room. “This uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem.”
According to Jackson, the practice risks distorting the judicial process itself. The Court is “creating a kind of warped” legal process, she said, effectively predicting how a case will come out before the parties have fully developed the arguments.
Justice Kavanaugh, however, was having none of the suggestion that the emergency docket is some sort of bespoke service for one particular president. Even though, you know, scoreboard. (A recent analysis by Court Accountability found that the Trump administration has enjoyed an eye-popping 84% success rate at the Supreme Court, with much of that success coming through emergency orders rather than the Court’s traditional merits docket.)
Kavanaugh pushed back, arguing that emergency applications are a structural feature of modern governance, not a partisan one.
“It’s not unique to the Trump administration,” he explained. As passing legislation through Congress becomes harder, administrations increasingly rely on executive actions and aggressive regulatory efforts. That inevitably leads to litigation, and requests for emergency relief.
Administrations “push the envelope in regulations,” Kavanaugh said. “Some are lawful, some are not.”
In his telling, critics of the Court’s emergency work have “short memories.” The Biden administration also regularly sought emergency intervention when lower courts blocked its policies.
And when those requests land at One First Street, the Court has to do something with them.
Jackson, who clerked at the Court around the same time as Kavanaugh, wasn’t convinced that the Court’s current posture is inevitable.
“I think it’s because the Supreme Court has shown a willingness to grant these emergency motions,” she replied.
“Brett will remember that when we clerked some 20 years ago, this was not the Supreme Court’s stance,” Jackson added. “Just because these motions were filed [didn’t mean] the Court actually had to entertain and grant them on their merits.”
Justice Jackson thinks the Court should take a page from old school parents and say no more often.
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