Justice Ketanji Brown Jackson Denounces ‘Warped’ Way Supreme Court Is Handling Trump Cases

Justice Ketanji Brown Jackson’s harsh criticism of how the Supreme Court operates underscores her defiant posture on a court to which she appears consigned to decades in the minority. The court’s junior justice, who was nominated to the high bench by President Biden in 2022, on Monday locked horns with her conservative colleague Justice Brett Kavanaugh. The two appeared at an event for lawyers and judges held at the federal courthouse at Washington. It was moderated by Judge Paul Friedman, who leads the American Law Institute. Justice Jackson’s ire was directed at the court’s co-called “shadow docket,” a turn of phrase coined by the legal scholar William Baude. It refers to “a range of orders and summary decisions that defy its normal procedural regularity.” He explained that they “lack the transparency that we have come to appreciate in its merits cases.” It liked such orders and decisions to “lightning bolts.” This category of case is sometimes referred to as the “emergency docket.” Justice Jackson laments that the conservative court’s increasing reliance on a “warped” process marks an unfortunate “departure” from the high court’s regular — and laborious — way of doing business. She declares that “This uptick in the court’s willingness to get involved with cases on the emergency docket is a real unfortunate problem. I think it is not serving the court or our country well at this point.” The Nine has backed the Trump Administration in some 80 percent of cases from the shadow docket.Justice Kavanagh retorted that some of the court’s critics — presumably his colleague among them — have “short memories” and that the Biden Administration was no stranger to appealing cases post haste. He argued that “this is not a new phenomenon in the Trump administration” and that “there’s a more aggressive executive branch over the years because it’s difficult to get legislation through Congress.”Justice Jackson, though, decries the court’s willingness to grant these emergency motions. She contends that “Brett will remember that when we clerked some 20 years ago, this was not the Supreme Court’s stance, that just because these motions were filed the court actually had to entertain and grant them on their merits.”Justice Jackson is not the first liberal justice to object to the shadow docket. In July, Justice Elena Kagan lamented that “what we started doing when we started doing these things is just issuing orders.” Instead, she argued that “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.”Justice Kagan 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.” Frequently the only extended prose to be found in shadow docket opinions are dissents, invariably written by the court’s liberal justices. The most frequent dissenter on the shadow docket over the last 15 years is Justice Sonia Sotomayor.One legal scholar reckons that “Since Donald Trump took office for the second time, the Supreme Court’s work on the shadow docket has virtually eclipsed its work on the merits docket, if not yet in volume, then arguably in impact.”One prominent defender of the shadow docket has been Justice Samuel Alito. In a 2021 speech 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 has emerged as one of the court’s most outspoken justices. In May she referenced “the elephant in the room” — by which she meant Mr. Trump’s view of judges — and suggested that “threats and harassment” are “attacks on our democracy, on our system of government. And they ultimately risk undermining our Constitution and the rule of law.”In a case from October, Trump v. Casa, Justice Jackson wrote in her dissent that the ruling curtailing nationwide injunctions by federal district court judges amounted to “an existential threat to the rule of law” and a “sad day for America.” The ruling, she warned, was “profoundly dangerous.” In a footnote in that dissent she cited “The Dual State,” a 1941 book by a German Jewish labor lawyer, Ernst Fraenkel, who fled the Nazis in 1938. In an appearance in July, Justice Jackson told the Indianapolis Bar Association that she is “not afraid to use my voice” and that she worries over “the state of our democracy.” At another appearance at New Orleans, she described her perch as offering a “wonderful opportunity to tell people in my opinions how I feel about the issues, and that’s what I try to do.”

Justice Ketanji Brown Jackson Denounces ‘Warped’ Way Supreme Court Is Handling Trump Cases

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