Supreme Court justices Jackson and Kavanaugh clash over handling of Trump cases

WASHINGTON — Internal Supreme Court divisions over how the high court has frequently ruled in favor of the Trump administration in emergency situations spilled out into public Monday with liberal Justice Ketanji Brown Jackson and conservative Justice Brett Kavanaugh locking horns.

The court’s conservative majority has on a regular basis blocked lower court rulings that have stymied President Donald Trump’s agenda, sparking criticism from within and outside the judiciary.

Jackson, often a vocal dissenter in those cases, forcefully aired her critique of the court’s actions in a rare public appearance with Kavanaugh at an event for lawyers and judges held at the federal courthouse in Washington.

Bemoaning the recent increase in such emergency filings — requested to challenge lower court rulings — she suggested that the number of filings would drop if the court were stingier about granting them.

The procedure has become known as the “shadow docket” because the court rarely hears arguments and often issues terse decisions with little explanation. The Supreme Court decisions can allow policies to go into effect at early stages in legal challenges, long before lower courts have reached any definitive conclusions. The cases might then return to the Supreme Court later in the process, leading to final decisions on the merits.

In the last year, the court has, among other things, allowed Trump to fire thousands of federal workers, assert control over previously independent federal agencies and implement various aspects of his hard-line immigration policy. All those moves, done through the shadow docket, had been blocked by lower courts.

“I just feel like this uptick in the court’s willingness to get involved … is a real unfortunate problem,” Jackson said. Among other things, it affects how lower court judges approach cases, as they already have a preliminary sense of how the Supreme Court might approach them on appeal, creating “a warped kind of proceeding,” she added.

“It’s not serving the court or this country well,” Jackson said.

Kavanaugh, usually in the majority in shadow docket cases, defended the court — as he has done in the past — saying it has to act one way or another when the government or another litigant files an emergency application.

Kavanaugh noted that the increase in government applications is not unique to Trump, saying the court also granted similar requests made by the Biden administration, albeit at a lower rate.

The reason successive administrations have rushed to the Supreme Court is that presidents have relied more on executive orders in recent years because of the difficulty of persuading Congress to enact legislation, and those actions are often challenged in court, he said.

The justices have aired their disagreements in written opinions, but this was a rare example of two justices entering into a public debate about internal court business.

“None of us enjoy this,” Kavanaugh said of the shadow docket trend, noting that the court has opted in some cases to hear oral arguments and issue longer written rulings in response to some of the criticism.

“We have to have the same position regardless of who is president,” he added, a statement that Jackson expressed agreement with.

Responding to questions posed by Washington-based Senior U.S. District Judge Paul Friedman, the justices were otherwise mostly on the same page during the hourlong event.

In particular, they both expressed concern about the increase in violent threats against judges. Recently, judges who have ruled against Trump have been regular targets.

“There’s no easy answer, for sure,” Jackson said. “It’s unfortunate because it relates to a lack of understanding about judicial independence.”

Kavanaugh praised Chief Justice John Roberts, who he said had “picked his spots” to push back against the criticism.

Roberts, for example, put out a statement rebuking Trump and his allies for suggesting judges should be impeached for ruling against the administration. One of the judges some Republicans want to impeach, Chief Judge James E. Boasberg of Washington, D.C., was among those at Monday’s event.