U.S. Supreme Court justice calls colleagues’ use of emergency orders ‘potentially corrosive’
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U.S. Supreme Court Justice Ketanji Brown Jackson has delivered a sustained attack on her conservative colleagues’ use of emergency orders to benefit the Trump administration, calling the orders “scratch-paper musings” that can have a “potentially corrosive” effect.
Jackson, who is the court’s newest justice, delivered a lengthy assessment of roughly two dozen court orders issued last year that allowed U.S. President Donald Trump to put in place controversial policies on immigration, steep federal funding cuts and other topics, after lower courts found they were likely illegal.
While designed to be short-term, those orders on the court’s emergency docket — also referred to as a “shadow docket” by critics — have largely allowed Trump to move ahead with key parts of his sweeping agenda, at least for the short term.
Jackson spoke for nearly an hour on Monday at Yale Law School, which posted a video of the event on Wednesday.
‘Scratch-paper musings’
Last week, Justice Sonia Sotomayor similarly talked about emergency orders in an event Tuesday at the University of Alabama that also took issue with the conservatives’ approach.
Jackson has previously criticized the emergency orders both in dissenting opinions and in an unusual appearance with Justice Brett Kavanaugh last month. But her talk at Yale, addressing the public rather than the other eight justices, was notable.
Members of the U.S. Supreme Court in a 2022 group photo. Seated (L-R): Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., Samuel A. Alito, Jr. and Elena Kagan. Standing (L-R): Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Ketanji Brown Jackson. (Evelyn Hockstein/Reuters)
She referred to orders, which often are issued with little or no explanation, as “back-of-the-envelope, first-blush impressions of the merits of the legal issue.”
Worse still, she said, was that the court then insists that “those scratch-paper musings” be applied by lower courts in other cases.
She said it has all led to confusion. “There is a serious concern that the Supreme Court’s modern stay practices are having an enormously disruptive and potentially corrosive effect.”
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Challenges court’s position on presidential power
She later pushed back on the court’s assessment that preventing the president from putting his policy in place is also a harm that often outweighs what the challengers to a policy might face.
“The president of the United States, though he may be harmed in an abstract way, he certainly isn’t harmed if what he wants to do is illegal,” Jackson said during a question-and-answer session with law school dean Cristina Rodriguez.
The court used to be reluctant to step into cases early in the legal process, she said. “There is value in avoiding having the court continually touching the third rail of every divisive policy issue in American life,” Jackson said.
While she said she couldn’t explain the change, “in recent years, the Supreme Court has taken a decidedly different approach to addressing emergency stay applications. It has been noticeably less restrained, especially with respect to pending cases that involve controversial matters.”
Jackson, often joined by Sotomayor and Justice Elena Kagan, has frequently dissented in decisions of the high court.
There have been conversations about emergency orders among the justices, Jackson said, but she decided to speak publicly with the goal of being “a catalyst for change.”
“My hope is that this speech opens up a conversation and that you and all of us will carefully examine the operation of the Supreme Court’s emergency docket and suggest reforms with an eye toward ensuring equal justice under the law.”
