Supreme Court justices Ketanji Brown Jackson and Brett Kavanaugh disagreed on Monday over whether the high court treats President Donald Trump the same as former President Joe Biden in cases brought by their respective administrations.
Jackson, who often writes dissents for Trump cases, criticized the current administration’s reliance on the emergency docket. The process allows the court to issue immediate decisions that override lower court rulings without hearing oral arguments or requiring long briefs. As a result, little to no explanation is given by the justices.
Such rulings handed down by the Supreme Court’s 6-3 conservative supermajority have allowed the firing of thousands of federal workers, the defunding of scientific research, and the termination of certain temporary protected status designations for foreigners.
Jackson finds the procedure troubling, as the president can take advantage of it to further his own partisan agenda.
“This uptick in the court’s willingness to get involved with cases on the emergency docket is a real, unfortunate problem,” Jackson said Monday evening at an event for lawyers and judges in Washington, D.C. “I think it is not serving our court or our country well at this point.”
Kavanaugh pushed back in the rare joint appearance with his liberal colleague, arguing the emergency docket is “not a new phenomenon in the Trump administration,” and that the court had granted similar rulings to the Biden administration. However, the rate of such rulings has increased during Trump’s second term.
The second Trump administration filed 19 emergency docket applications in its first 20 weeks last year, equaling the total filed by the Biden administration over four years, per an analysis by Georgetown University law professor Stephen Vladeck. About 33 emergency applications have been filed so far since Trump’s return to office, according to the Brennan Center for Justice.
Kavanaugh noted his and the other justices’ distaste for the emergency docket while acknowledging that the high court has to “have the same position regardless of who is president.” Jackson agreed.
But where she differs is that the rulings in favor of the Trump administration further bolster its executive power and potentially shift the law. In contrast, the rulings won by the Biden administration largely upheld the country’s status quo.
“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, referencing lower court rulings that get blocked or suspended by the Supreme Court.
LEGAL WAR OVER TRUMP TARIFFS STILL RAGING DESPITE SUPREME COURT RULING
The Trump administration has secured many wins from the Supreme Court, which has fueled accusations that the conservative majority is often biased in favor of Trump. Justice Amy Coney Barrett disputed this claim while promoting her book last fall.
In a landmark 6-3 decision last month, the Supreme Court ruled against the Trump administration regarding the future of tariffs implemented under the International Emergency Economic Powers Act. The court quickly drew Trump’s ire over the ruling. This case was decided through the normal merits process, not the emergency docket.