Liberal Justice Ketanji Brown Jackson sharply criticized the Supreme Court on Monday for being quick to issue rulings that have temporarily allowed some of President Donald Trump’s controversial policies to stand while legal challenges against them play out in the courts.
The justices have signed off on the administration’s ban on transgender soldiers in the military, the firing of independent agency heads and the gutting of the Education Department, among other rulings that cleared the way for the president’s priorities through the court’s emergency docket.
“This uptick in the court’s willingness to get involved with cases on the emergency docket is a real, unfortunate problem,” Jackson told an audience during a talk with conservative Justice Brett M. Kavanaugh. “I think it is not serving our court or our country well at this point.”
Jackson offered her public critique of the high court as she addressed lawyers and judges gathered for a rare opportunity to see justices from opposite ends of the court’s political spectrum exchange their views during an annual lecture in a ceremonial courtroom at the federal courthouse in D.C.
Jackson’s comments came in response to Kavanaugh’s assertion that the Supreme Court had treated Trump and Democratic President Joe Biden similarly on the emergency docket. Kavanaugh pointed out that the justices had allowed a number of Biden policies to go forward as well, including access to the abortion drug mifepristone and military vaccine mandates.
“This is not a new phenomenon in the Trump administration,” Kavanaugh said.
Jackson was quick to disagree, saying the Biden wins on the emergency docket largely upheld the legal status quo. The rulings for the Trump administration were fundamentally different, she contended, because the president was instituting new initiatives that potentially shifted the law.
“What is happening now is the administration is making new policy, but then insisting that the new policy take effect immediately before a challenge about its lawfulness is determined,” Jackson said.
She added that the administration was emboldened to bring cases on an emergency basis because “the Supreme Court has shown a willingness to grant these emergency motions.”
Emergency cases are different from those on the court’s regular docket because they typically do not feature arguments and have shorter briefs. The justices often don’t explain their rationale for rulings, which usually come before lower courts have fully considered the merits of an issue and made final rulings.
The Trump administration has amassed an overwhelming winrecord in 25 such cases that have been decided since his second term began. The record has drawn the ire of Democrats and the court’s three liberal justices, who have sometimes accused the court’s conservative majority of putting a thumb on the scale for Trump.
Kavanaugh on Monday told the group that the court was seeing more emergency cases because presidents were more willing to implement policies via executive order that were being challenged in the courts.
“There’s a more aggressive executive branch over the years because it’s difficult to get legislation through Congress,” Kavanaugh said.
Jackson said she sees her dissents, which have been frequent in the last year, as a way to speak to audiences beyond the court.
“When I am writing a dissent, I am speaking to the American people probably more so than anybody,” Jackson said. “The hope is that at some point in the future there will be enough people who are agreeing with the way I am viewing this particular issue.”
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