Justice Jackson chides Supreme Court conservatives over ‘oblivious’ pro-Trump emergency orders

WASHINGTON — Supreme Court Justice Ketanji Brown Jackson launched a sustained attack on her conservative colleagues’ use of emergency executive orders to benefit the Trump administration, calling the orders “rubbish paper musings” that can “seem unconscious and therefore ring hollow.”

The court’s new judge, Jackson, delivered a sweeping assessment of about two dozen court orders issued last year that allowed President Donald Trump to enact controversial policies on immigration, deep cuts in federal funding and other issues after lower courts ruled they were likely illegal.

Although designed to be short-term, these orders have largely allowed Trump to move forward – for now – with key elements of his sweeping agenda.

Jackson spoke for nearly an hour Monday at Yale Law School, which released video of the event Wednesday.

Last week, Justice Sonia Sotomayor also spoke about emergency orders at a Tuesday event at the University of Alabama that also took issue with conservatives’ approach.

Jackson has previously criticized the emergency orders both in dissenting opinions and during an unusual appearance with Justice Brett Kavanaugh last month. But his speech at Yale, addressing the audience rather than the eight other justices, was remarkable.

She called the orders, which are often issued with little or no explanation, “back-of-the-envelope first impressions about the merits of the legal question.”

Worse still, she added, the court then insists that “those thoughts on scrap paper” be applied by lower courts in other cases.

The orders suffer from an additional problem, she said, of failing to recognize that real people are involved, making them “appear oblivious and therefore ring hollow.”

She also rejected the court’s assessment that preventing the president from implementing his policies also constitutes harm that often exceeds that which a policy’s opponents might face.

“The president of the United States, while he may be harmed in the abstract, is certainly not harmed if what he wants to do is illegal,” Jackson said during a question-and-answer session with Law School Dean Cristina Rodriguez.

The court was once reluctant to intervene in cases early in the legal process, she said. “It is helpful to avoid having the court continually touch on the third point of every political issue that divides American life,” Jackson said.

Although she said she could not explain the change, “in recent years, the Supreme Court has taken a decidedly different approach to handling emergency stay requests. It has been noticeably less restrained, particularly with respect to pending cases that involve controversial issues.”

Jackson, often joined by Sotomayor and Justice Elena Kagan, has often disagreed.

There were discussions about emergency orders among the justices, Jackson said, but she decided to speak publicly in an effort to be “a catalyst for change.”

Also Wednesday, Sotomayor issued a rare public apology to another justice, Kavanaugh, for what she called “hurtful comments” she made last week during an appearance at the University of Kansas Law School.

Referencing an opinion Kavanaugh wrote in an immigration case in which the court granted an emergency order requested by the administration, Sotomayor said her colleague “probably doesn’t really know anyone who works hourly.” His comments were reported by Bloomberg Law.