The Supreme Court’s junior justice, Ketanji Brown Jackson, in a new line of dissent, is emerging as a vociferous critic of how the Nine are handling the deluge of petitions from President Trump. 

The junior justice is contesting how her colleagues are managing the so-called shadow docket. That refers to petitions the court decides on an emergency basis on a compact schedule with no oral argument and minimal briefing and opinions.

The term was coined a decade ago by a law professor at the University of Chicago, William Baude. Mr. Baude describes the shadow docket as “a range of orders and summary decisions that defy the Court’s normal procedural regularity.”

What was once a relative rarity has in Mr. Trump’s second term has become a staple of the Supreme Court’s agenda, as the Department of Justice pushes cases up to the Nine before they have been fully adjudicated by lower courts. 

The expansion of the shadow docket is partially a function of the unprecedented spate of nationwide injunctions handed down by district judges that have frozen components of Mr. Trump’s agenda. Solicitor General D. John Sauer last month argued before the justices in the context of the effort to end birthright citizenship that this ability of a single judge to issue a universal junction ought to be curtailed. The Supreme Court has yet to rule on that issue. 

One of the Trump administration’s signature victories on emergency appeal came last week in Social Security Administration v. AFSCME. On a six-to-three decision, the court held that the Department of Government Efficiency could access Social Security data. A district court judge and the Fourth United States Appeals Circuit had both frozen that access pending further adjudication.

Justice Jackson’s dissent reckons that the government “fails to substantiate its stay request by showing that it or the public will suffer irreparable harm absent this Court’s intervention …  it cannot be bothered to wait for the litigation process to play out.” She contends that such impatience “has traditionally been insufficient to justify the kind of extraordinary intervention the Government seeks”  — and is now increasingly being granted. 

Justice Jackson rues that “once again, this Court dons its emergency-responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them.” Her reference is to an earlier case that was also decided on an emergency basis, Noem v. Doe, in which the court reversed a lower court’s ruling that the government could not revoke a grant of parole to some 530,000 Venezuelans, Cubans, Haitians, and Nicarauguans.    

In dissent from the court’s ruling that the administration could revoke that parole, Justice Jackson wrote that her colleagues “botched” their assignment and that even if “the Government is likely to win on the merits, in our legal system, success takes time and the stay standards require more than anticipated victory.” Her colleagues, she laments, engaged in merely a “back-of-the-napkin assessment” of how the case was likely to turn out. 

Justice Jackson assesses that the rush to rule is “unleashing devastation” on those half a million migrants who thought themselves safe from deportation, but her larger argument is that by weakening the requirements to secure a stay, the court is short-circuiting what is intended to be a process of percolation through the lower courts, with intervention from above warranted only in extraordinary circumstances of “irreparable harm.” 

The court’s liberals appear to be of one mind on this head. Justice Elena Kagan, writing a dissent to another victory for the administration off the shadow docket, warned of a court “unrestrained by the rules of briefing and argument — and the passage of time — needed to discipline our decision-making.” Justice Samuel Alito, in a speech at Notre Dame in 2021, criticized those who paint the court as “a dangerous cabal that resorts to sneaky and improper methods to get its ways.”       

The Supreme Court has, Justice Jackson argues in the DOGE case, “truly lost its moorings” in rewarding the government’s “poor showing” in respect of evidence with a stay — and in the process overriding lower courts that have “carefully” crafted “interim relief tailored to the needs of the moment.” She calls the granting of a stay in this case “systematically corrosive.”

Justice Jackson alleges that the right-leaning court has, in the DOGE case, ensured that “what would be an extraordinary request for everyone else is nothing more than an ordinary day on the docket for this Administration.” The court’s majority — for the moment, at least — appears not to share her concern.