Justice Ketanji Brown Jackson hasn’t held back in her Supreme Court dissents, even when she’s alone in calling out what she sees as the majority’s misguided approach. While the Biden-appointed justice’s displeasure with the status quo has already been documented in her opinions, she further crystallized her views in public remarks at Yale Law School this week.
Delivering a lecture titled “Equity and Exigency: A First-Principles Solution for the Supreme Court’s Emergency Docket,” Jackson systematically critiqued the majority’s actions on what she noted critics call the “shadow docket.” The justice said she prefers the term “emergency docket” for the cases that ask the court for speedy relief. In doing so, she staked out a sort of middle ground between the evocative term “shadow docket” and the limper “interim docket” that Justice Brett Kavanaugh has said he prefers.
On that middle-ground point, anyone tempted to call Jackson’s critique anything like radical should watch her lecture in full. While coming in some ways from a “liberal” vantage point, it could fairly be called conservative because of its perspective: caring about judicial restraint and the court’s institutional role and reputation.
In this fraught moment for the court, her remarks followed Justice Sonia Sotomayor’s recent public comments in which the Obama appointee told a law school crowd in Alabama that there’s “disagreement among us right now about the efficacy of the emergency docket and of what people have dubbed the shadow docket.” Sotomayor said there’s a “shift in paradigm” at the court in granting relief amid the Trump administration’s “unprecedented” number of urgent appeals.
In separate remarks to a law school audience in Kansas, Sotomayor made an unusually direct observation about Kavanaugh’s infamous opinion in a shadow docket case involving immigration stops; she mused that the opinion by the Trump appointee, whom she didn’t name but clearly referred to, came from “a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.” Sotomayor publicly apologized to Kavanaugh this week.
Turning to the substance of Jackson’s Yale lecture, she similarly took stock of a shift in the court’s approach from when she clerked decades ago for the justice she would replace, Stephen Breyer. These days, she said, the court has been “noticeably less restrained” in controversial cases. She recalled that previously the court would humbly wait until lower courts established facts and rendered judgments, and the justices would intervene only in actual emergencies.
“Things are different now,” she said. “Today the court routinely opts to enter the fray, and it fails to acknowledge the harms that follow when the Supreme Court of the United States consistently and casually divests the lower courts of their equitable authority.” She said this is happening “in the most high-profile cases,” such as ones involving executive orders and administrative actions.
The justice said the court’s aggressive approach has led it to “consistently ignore, or at least undervalue, real-world harms.”
Without naming Sotomayor, she approvingly cited her colleague’s dissent in an immigration case last year — a dissent Jackson joined — that said the majority’s latest intervention on behalf of the Trump government sent a message: “Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”
Against that backdrop, Jackson said she’s “very troubled by the institutional costs” that the court’s actions impose on its relationships with both the lower courts and the American people.
On the lower court point, it’s worth keeping in mind that Jackson has important experience on the high court in that she served as a district court judge. Perhaps not coincidentally, given their joint objections to some of the court’s shadow docket actions that upend lower court work, so did Sotomayor.
“Having a docket that allows the court to routinely interfere with lower court cases while they are in progress disrespects the lower courts’ authority and withholds the deference appellate courts have traditionally provided,” Jackson said, adding that the high court is also withholding “its own work product” by issuing summary orders without explanation. She said the court’s power comes from its reasoning, so it needs to give reasons for why it makes these significant moves.
Of course, Jackson’s call for a return to judicial restraint runs into the reality of a court with six Republican appointees. Indeed, she’s sometimes alone, even among the court’s three Democratic appointees. One might wonder, then, whether the justice is pressing a purely academic point.
In fact, Jackson was asked about the prospect of change during a question-and-answer session with the school’s dean after her lecture. Jackson may have been tempted to answer that change on the court can only realistically come with a change in the court’s membership, which doesn’t seem to be shifting anytime soon. But the justice said that she’s “at core a very optimistic person” and that her hope is that in the future, her view “will come to fruition at some point.”
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