Justice Jackson Calls Emergency Docket 'Potentially Corrosive'

Justice Ketanji Brown Jackson on Thursday criticized the Supreme Court's use of its emergency docket, saying that the court's willingness to fast-track high-profile cases posed a threat to its standing among the American public.

The court, she said in a speech, "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.

Justice Jackson told the audience that there was "a serious concern" that the Supreme Court's handling of its emergency docket was "having an enormously disruptive and potentially corrosive effect" on the federal court system.

Her remarks came during an annual lecture hosted by the University of the District of Columbia's law school aimed at honoring a commitment to civil rights and civil liberties. The crowd of several hundred people included students from the historically Black law school.

Her speech came about two hours after she had fielded the latest high-profile emergency application. That request came from the Trump administration, asking the Supreme Court to allow it to continue to rapidly deport immigrants to countries other than their own.

Justice Jackson did not speak directly about that case, but she pointed to other recent emergency rulings, saying that the court was now routinely using "truncated procedures" to weigh in on consequential cases.

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Unlike the court's routine so-called merits docket, where cases are considered by the justices over months and decided only after extensive written briefs and oral arguments, emergency docket cases are often decided quickly and without full briefing or argument.

The Trump administration has flooded the court with applications for emergency action -- about 30 in President Trump's first year in office alone. The court has granted many of those requests, allowing Mr. Trump to implement policies, technically on a temporary basis, while their legality is considered by lower courts.

All three of the court's liberal justices have criticized the court's handling of its emergency docket, which critics call "the shadow docket," but Justice Jackson's speech on Thursday, which focused entirely on the subject, was particularly pointed.

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It came after Justice Elena Kagan, another liberal justice, said publicly this summer that she thought the court had improved how it handled emergency requests, noting that more of the court's emergency decisions now included some reasoning.

Justice Jackson nodded to the court's recent emergency rulings, saying that the court "began to explain more." She noted that it was "still not the full kind of explanation" given on the court's regular docket, but added that she thought it was "a good and positive development."

Still, Justice Jackson urged the court to reimagine how to handle the emergency docket, including coming up with a better system to decide whether to take up emergency requests and when.

She criticized what she called the court's willingness to jump into cases before lower courts had decided them. The court's "new approach," she said, "often lacks any acknowledgment of the harms that follow when the Supreme Court consistently and casually divests the lower courts" of their authority.

Appointed by President Joseph R. Biden Jr. in 2022, Justice Jackson is the court's newest member but has emerged as perhaps the most vocal public critic of its practices -- in speeches and also in her written opinions.

She noted on Thursday that the court received thousands of normal petitions for review each year. Typically, it agrees to hear only about 60 of those. She worried aloud that the court could be perceived as failing to deliver equal justice.

"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," Justice Jackson said. "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 said that "while it will sometimes be hard," the justices could "patiently wait our turn" to take up cases once they had made their way through the lower courts.

The justice's words were greeted with cheers and an ovation.

Across town, three of her conservative colleagues -- Chief Justice John G. Roberts Jr., Justice Amy Coney Barrett and Justice Brett M. Kavanaugh -- had been invited to dine on sea bass and ice cream at a White House state dinner for President Xi Jinping of China.