Supreme Court Justice Ketanji Brown Jackson has been calling out her colleagues in public remarks over their use of the shadow docket, through which the GOP-appointed majority has granted emergency relief for the Trump administration to quickly carry out policies that lower courts have blocked. The Biden-appointed justice has also been refusing to defer to this administration in her actions on the bench.
Those two phenomena were both in play on Thursday as the justice spoke out in public against the court’s fast-track moves while declining to give the administration instant relief in its latest urgent application.
In her remarks at a law school in Washington, Jackson reportedly told the crowd of her “serious concern” that the high court’s handling of its emergency docket is “having an enormously disruptive and potentially corrosive effect” on the court system.
That same day, the administration brought its latest bid for speedy relief on deportation powers to Jackson. The application went to Jackson because it had to, not because the administration wanted to bring it to her. The justices are assigned to field emergency motions from different geographical regions in the nation’s lower courts, and Jackson is assigned to the Northeastern circuit that has been ruling against the administration on the immigration issue.
It’s not unusual for this administration to seek such emergency relief. In these applications, it will not only ask for a “stay” (or pause) of a lower court action but also for an immediate “administrative stay” that instantly halts the lower court action while the justices consider whether to grant a longer-term pause.
But this latest application from Solicitor General John Sauer contained an unusual request.
It said that if Jackson were not inclined to grant an immediate administrative stay, then she should refer the request for such a stay to the full court. The ask seemed to anticipate that Jackson would not be inclined to grant that provisional relief while the court decides whether to provide longer-term relief. So, the government essentially sought to leapfrog over the justice, knowing that it has better chances before the full court.
It is typical for justices to refer the question of whether to grant longer-term stays of significant matters to the full court. But it stood out for the administration to ask the justice to do so, and to ask her to do so at the preliminary step of an administrative stay.
The administration’s anticipation of Jackson’s predictable skepticism appeared to be correct, in retrospect. The next entry on the docket Thursday was Jackson calling for a response to the application from the immigrants’ lawyers by 4 p.m. ET on Monday. That is, she did not grant an immediate administrative stay. It is unclear what discussions, if any, happened or are happening behind the scenes between her and her colleagues in the meantime.
To be sure, the administration can ultimately succeed in its application, in the likely event that Jackson will at least refer the question of the longer-term stay to the full court after the immigrants’ response comes in. And even if she were to deny a longer-term stay outright on her own, the administration would be allowed to present its application to another justice to get the issue in front of the full bench.
But for now, Jackson declined to give the administration exactly what it wanted, when it wanted it.
The justices are set to return to the bench on the first Monday in October to start their next term.
In an unrelated emergency ruling on Friday, Jackson led the Democratic-appointed justices in dissent, arguing that the majority “misuses its equitable powers” in green-lighting the administration’s use of a citizenship database ahead of the midterms.
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