Justice Jackson Shadow Boxes at the Supreme Court

Justice Jackson’s sally against her court’s use of the emergency or “shadow docket” suggests a summer break has done little to cool temperatures on the high bench. The junior justice told a crowd at the District of Columbia that the deciding of cases on an expedited basis is “having an enormously disruptive and potentially corrosive effect” on the court. She adds that the emergency docket amounts to a Republican “fast track.”So much for “Justice delayed is justice denied.” These columns have noted that the emergence of the emergency docket “is better understood as a function of the unprecedented deluge of orders from lower court judges blocking elements of Mr. Trump’s agenda.” So relentless were these “nationwide” decrees that in Trump v. Casa the Supreme Court curtailed their reach — in a case decided after full briefing and oral argument. No wonder that deriding the high court’s emergency docket has become a cause célèbre for the left. In April, the New York Times cast shade on the justices’ “questionable new way of operating,” which it called “a central legacy of the court led by Chief Justice Roberts” that has resulted, via “warping procedures,” in some 20 victories for President Trump. We have written, though, that the “shadow docket is a check and balance of its own.”Criticism of the emergency docket is hardly limited to the Gray Lady. As our A.R. Hoffman reports, Justice Elena Kagan has been another foe of the speedy method. In Trump v. Slaughter she writes 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.” Last year Justice Kagan put it more bluntly, arguing that orders that emerge from the emergency docket “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.” By any method of decision, though, the court’s liberals sit in the minority.Justice Kagan struck a less dire note in testimony to Congress this summer. The session was centered on the security of the Supreme Court, but she was asked about the surge in the shadow docket. Quoth the justice: “I don’t think that’s so much of a problem anymore.” The Times called that a “brighter view” than Justice Kagan is usually wont to offer. On another occasion she clarified that “I don’t mean like we should write 50-page magnum opuses.”Justice Alito was, by our lights, far sighted when as far back as 2021, in an address at Notre Dame, he declared 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 Shadow Boxes at the Supreme Court

Justice Jackson Shadow Boxes at the Supreme Court

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