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Supreme Court Justices Ketanji Brown Jackson and Brett Kavanaugh had a dispute over the high court’s approach to its emergency docket in a rare, candid discussion during an event Monday night.
Jackson, a Biden appointee, signaled that the high court’s willingness to side with President Donald Trump most of the time when it comes to the emergency docket, sometimes known as the “shadow docket,” was a “problem.” The liberal justice is one of three, and all have frequently sided against Trump in emergency decisions, which have often broken 6-3 in favor of the president.
“The administration is making new policy … and then insisting the new policy take effect immediately, before the challenge is decided,” Jackson said, according to reports from the Associated Press and NBC News. “This uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem.”
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Jackson said: “It’s not serving the court or this country well.”
Kavanaugh, a Trump appointee, countered that the Supreme Court’s approach to emergency requests was not unique to the Trump administration and that the high court handled the Biden administration the same way, despite there being fewer interim requests under the former president.
Kavanaugh said presidents “push the envelope” more with executive orders because Congress is passing less legislation.
“Some are lawful, some are not,” Kavanaugh said, later adding, “None of us enjoy this.”
The pair spoke in a courtroom during an annual lecture honoring the late Judge Thomas Flannery of the U.S. District Court of Washington, D.C., while several federal judges, including high-profile ones like Judge James Boasberg, looked on.
Jackson’s criticism is not new; she has been perhaps the most vocal dissenter in emergency docket cases.
In August, she lambasted 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.
The Trump administration has faced hundreds of lawsuits and adverse rulings in the lower courts, and the Department of Justice’s solicitor general’s office, which represents the government before the Supreme Court, often does not elevate cases to that level.
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Such emergency requests allow the government to bypass the lengthy court process, involving extensive briefings and oral arguments, to seek immediate relief in the face of restraining orders and injunctions in the lower courts.
The Trump administration has brought about 30 emergency applications to the Supreme Court and secured victories about 80% of the time, according to the Brennan Center for Justice.
Through the emergency docket, the Supreme Court has greenlit Trump’s mass firings and curtailed nationwide injunctions. The high court has also cleared the way for deportations and immigration stops viewed as controversial by critics of the administration. 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 by taking this route. 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.
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