Justice Jackson Delivers Unprecedented Attack on ‘Shadow Docket’ and Decries Republican ‘Fast Pass’ to Supreme Court

Justice Ketanji Brown Jackson’s declaration on Thursday that the Supreme Court’s emergency docket is “having an enormously disruptive and potentially corrosive effect” on federal justice sets up a term of escalating tensions at the high court. Never before has a justice so thunderously denounced the expedited process for deciding cases.The remarks from the court’s junior justice, who was appointed by President Biden in 2022, came in an address at the law school of the University of the District of Columbia. She reckoned that the Nine “cannot expect the public to have faith in our judicial system if, without clear explanation, we are consistently greenlighting harmful acts” without a full hearing. The high court’s new term starts on October 5.The emergency docket or “shadow docket” refers to the court’s way of disposing of cases without oral arguments or opinion writing. The phrase “shadow docket” was coined a decade ago by the conservative legal scholar William Baude to refer to “a range of orders and summary decisions that defy its normal procedural regularity.” The New York Times reckons that the docket is at the heart of the court’s “questionable new way of operating” and “a central legacy of the court led by Chief Justice Roberts.”The editorial pages of The New York Sun, though, have written of the “virtue of the shadow docket. If, after all, the Constitution is, among other things, a vast contraption of checks and balances, then the shadow docket is a check and balance of its own.” The escalating use of the emergency docket could be due, in part, to the explosion of national injunctions issued by lower court judges eager to thwart President Trump’s agenda. During the first year of Mr. Trump’s second term, some 30 petitions arrived at the Supreme Court via the emergency docket. One was filed just hours before Justice Jackson’s speech. That petition asks the justices to lift a lower-court ruling that blocks its policy of third-country deportations. The Trump administration has won some 70 percent of its cases decided in this expedited fashion.Justice Jackson is hardly alone among the high court’s liberals in decrying this fashion of deciding. Justice Elena Kagan wrote in dissent in Trump v. Slaughter that “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”Justice Kagan banged that same drum last year in a speech to the Ninth United States appeals circuit, where she declared that on the emergency docket the “orders themselves don’t tell anybody anything about why we’ve done what we’ve done. A court is supposed to explain things. That’s what courts do. They’re supposed to explain things to litigants. They’re supposed to explain things to the public generally.”The justice clarified that “I don’t mean like we should write 50-page magnum opuses. I think, you know, one or two or three pages would do.” In 2021, Justice Samuel Alito told an audience at Notre Dame that the “catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”Justice Jackson on Thursday warned that “If we’re not careful, the emergency docket can and will become an end run around the standard review process, a special avenue that certain privileged litigants can use selectively. Why is it that one party should get a fast pass to the Supreme Court of the United States when so many other parties are queued up, waiting patiently for the court’s attention?” She urged her colleagues to “patiently wait our turn” while cases wend through the lower courts.Justice Jackson has emerged as a vociferous critic of the court — a stance that has increasingly left her as a lone dissenter. In Trump v. Casa she wrote by herself to call the Trump Administration’s position an “existential threat to the rule of law” and “permission to engage in unlawful behavior.” She accused her colleagues of creating a “zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes.”Justice Amy Coney Barrett was so shocked by that language that she called it “extreme” and a “startling line of attack.” She thundered that “We will not dwell on Justice Jackson’s argument” and that “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” Justice Barrett described Justice Jackson as “tethered neither to sources nor, frankly, to any doctrine whatsoever.”While Justice Jackson was meditating on the court’s procedures, three of her colleagues — Chief Justice John G. Roberts Jr., Justice Barrett, and Justice Brett M. Kavanaugh — were supping at a state dinner with President Trump and Chairman Xi at the White House. The menu included sesame-crusted sea bass, braised baby bok choy, and vanilla crémeux and White House honey ice cream — all served right on time.

Justice Jackson Delivers Unprecedented Attack on ‘Shadow Docket’ and Decries Republican ‘Fast Pass’ to Supreme Court

Justice Jackson Delivers Unprecedented Attack on ‘Shadow Docket’ and Decries Republican ‘Fast Pass’ to Supreme Court

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