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Justice Ketanji Brown Jackson said the Supreme Court’s recent approach to its emergency docket has had a corrosive effect on litigation practices and strained the court’s relationship with the lower courts. Previous iterations of the court were slower to act on emergency petitions and expected more from plaintiffs, Jackson said Thursday at the University of the District of Columbia David A. Clarke School of Law.
Justice Antonin Scalia, Jackson said, wrote that plaintiffs faced an especially high bar when two lower courts had already denied injunctive relief. The modern court has been “noticeably less restrained,” especially in high-profile matters, Jackson said. “There is a serious concern that the Supreme Court’s modern stay practices are having a disruptive and potentially corrosive effect,” Jackson said just weeks before the start of a new term.
Jackson’s criticisms come as the court has seen a renewed flurry of emergency applications. The court last week denied a request from the administration to let new mail-in ballot requirements go into effect and twice had to step into a contentious redistricting debate in Missouri. A third Missouri petition was filed Tuesday.
Justice Elena Kagan also on Tuesday denied a stay in a high-profile custody dispute that made its way to the court. Just hours before Jackson spoke, the Trump administration filed a new petition asking the court to uphold its third-country deportation policy . Questions about how much precedential weight to give the court’s emergency docket decisions have roiled the lower courts.
Fourth Circuit judges traded barbs over the issue in April. And multiple judges expressed frustration over an admonition from Justice Neil Gorsuch in 2025 warning lower courts not to “defy” the justices’ emergency docket rulings, which are typically unsigned and often unexplained. Jackson, who was appointed to the court in 2022 by Joe Biden, has emerged as one of the most vocal critics of how the court has handled its emergency, or shadow docket.
In one notable dissent more than a year ago, Jackson accused the majority of practicing “Calvinball jurisprudence” to favor Trump administration requests for emergency relief. Speaking to Yale Law School in April, Jackson accused the court of leaving “zombie proceedings” shambling through the lower courts after the justices appear to have already weighed in on the merits of the case. On Thursday, Jackson said the court’s increased willingness to act on emergency petitions has created a special avenue for “certain privileged litigants” to fast-track cases to the court.
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Source: Bloomberg Law News
