Justices Jackson and Kavanaugh clash over ‘shadow docket’ in Trump era

Supreme Court Justices Ketanji Brown Jackson and Brett Kavanaugh had a dispute over the high court’s approach to its emergency filing during a rare and candid discussion at an event Monday evening.

Jackson, a Biden appointee, flagged the high court’s willingness to mostly side with President Donald Trump on the emergency brief, sometimes known as the “shadow brief,” as a “problem.” The liberal justice is one of three, and all have frequently sided with Trump in emergency rulings, which have often ended 6-3 in the president’s favor.

“The administration develops a new policy…and then insists that it take effect immediately, before the challenge is decided,” Jackson said, according to reports from the Associated Press and NBC News. “This increase in the court’s willingness to become involved in cases on the emergency docket is a truly unfortunate problem.”

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Ketanji Brown Jackson, Supreme Court Justice. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

Jackson said: “This does not serve the court or this country well.”

Kavanaugh, a Trump appointee, countered that the Supreme Court’s approach to emergency requests was not unique to the Trump administration and that the high court had treated the Biden administration the same way, even though there were fewer interim requests under the former president.

Kavanaugh said presidents are “pushing the envelope” more with executive orders because Congress passes fewer laws.

“Some are legal, some are not,” Kavanaugh said, later adding, “None of us like that.”

The two men spoke in a courtroom at an annual lecture honoring the late Judge Thomas Flannery of the U.S. District Court in Washington, D.C., as several federal judges looked on, including high-profile judges like Judge James Boasberg.

Supreme Court Justice Brett Kavanaugh speaks. (Reuters)

Jackson’s criticisms are not new; she was perhaps the most vocal dissident in times of emergency.

In August, she blasted the Supreme Court majority for “legislating” from the bench in a dissent to an emergency ruling temporarily allowing the National Institutes of Health to cancel about $738 million in grants.

“This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: this one, and this administration always wins,” Jackson wrote.

The Trump administration has faced hundreds of lawsuits and adverse rulings in lower courts, and the Justice Department’s office of the solicitor general, which represents the government before the Supreme Court, often does not elevate cases to that level.

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The Supreme Court is held on January 13, 2026 in Washington. (AP Photo/Julia Demaree Nikhinson, file)

Such emergency requests allow the government to bypass the lengthy legal process, involving lengthy briefings and oral arguments, to seek immediate relief in the face of restraining orders and injunctions from lower courts.

The Trump administration has filed about 30 emergency motions with the Supreme Court and achieved victories in about 80% of the cases, according to the Brennan Center for Justice.

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Through the emergency docket, the Supreme Court green-lighted Trump’s mass firings and scaled back injunctions nationwide. The high court also cleared the way for deportations and immigration controls considered controversial by administration critics. The judges also ruled that the government can, for now, dismiss transgender service members from the army.

But Trump hasn’t always won by taking this route. The justices asked the administration to give more notice to suspected illegal immigrants deported under the Alien Enemies Act and agreed with a lower court that the president inappropriately federalized the National Guard as part of his immigration crackdown in Chicago.