Jackson says all is not well on the Supreme Court emergency docket

The most junior member of the high court has been outspoken about her objections to her colleagues’ actions on the emergency docket.WASHINGTON (CN) — Justice Ketanji Brown Jackson gave a pointed lecture about the emergency docket on Thursday night, describing what she viewed as corrosive harms caused by the high court’s current use of quickly issued and often unexplained orders to decide controversial cases.“Our modern methods are not serving the court or the country well,” the Joe Biden appointee said while speaking at the University of the District of Columbia School of Law. “I hope it’s also clear why I adamantly reject any effort to normalize a process whereby the Supreme Court actively superintends matters that are pending in the lower courts.”Jackson, who has previously lamented her colleagues’ emergency docket rulings in dissenting opinions, focused not on one specific decision but the high court’s processes as a whole. She said the court wasn’t adhering to a consistent set of standards for all applications.“You have to really pay attention not just to what the court ultimately decides, but how it reached that decision and whether the steps and the process it used in reaching a decision in this case looks at all like the steps and the process it used to make a similar decision in other cases,” Jackson said.Unlike many similar public speaking events the justices typically attend, Jackson took an opportunity to give law students in the audience a detailed explanation of the emergency docket and its intended role.Stay requests are discretionary asks, Jackson said, stating there was a long track record of justices opting out of making substantive stay decisions because they saw no urgent need to get involved. Jackson noted the late Justice Antonin Scalia was known for doing this.“I think the justices understood that very little good comes from taking an institution that is supposed to be operating outside of the political realm and routinely steering it into the fray,” Jackson said.Prior to her appointment to the bench in 2022, Jackson served as a clerk to former Justice Stephen Breyer, whose seat she filled when he retired. During her time as a clerk, Jackson said the high court didn’t “relish the opportunity to enter a pending case as a de facto superintendent.”Importantly, Jackson said, this restraint respected the lower courts’ authority and the federal judiciary’s usual decision-making and review process. By granting a stay application, the justices are putting a lower court ruling on pause, acting prior to a full adjudication of the case.As a court of final review, Jackson said the Supreme Court should intervene in pending cases only in extreme circumstances that present real emergencies. But instead of an anomaly, Jackson said stay grants were at risk of swallowing the rule.“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,” Jackson said. “Think about that for a moment. 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?”Jackson said summary orders from the emergency docket came at the cost of the court’s relationship with the public. She noted the Supreme Court’s power came from its reasoning and claimed the justices were disrespecting the public’s trust and authority by acting in a cursory manner.“Significant real-world harms can follow Supreme Court stay rulings, and when the court’s orders do not acknowledge that reality, they seem oblivious and ring hollow,” Jackson said. “We cannot expect the public to have faith in our judicial system if, without clear explanation, we are consistently greenlighting harmful acts that do real damage to litigating plaintiffs without a court decision fully and fairly determining the lawfulness of that challenged conduct on the merits.”To fix these deficiencies, Jackson said the court needed to adjust the factors considered when issuing stay decisions. She said the court should impose a threshold exigency criterion, allowing the justices to neutrally decide whether to intervene.Instead of granting stay applications based on whether the lower court might have made a mistake, Jackson said the party should be forced to prove an impending harm that could not wait for full adjudication by the lower courts.Jackson said the court should move away from considering the merits of the appeal, only doing so if absolutely necessary.“We would set aside the merits and start by evaluating who has the better argument about the intervening harms,” Jackson said. “Instead of being evaluated only as an afterthought, we would place real and primary weight on the equitable balance of the competing harms.”While other justices have made public comments about issues on the emergency docket, Jackson has been the most outspoken on the topic. And her decision to openly address an internal court issue on which there is strong disagreement is an anomaly for the typically tight-lipped high court.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads