Two Supreme Court justices weighed in on the court’s growing pattern of granting emergency orders at a rare public joint appearance where they laid out their conflicting views.
Justices Ketanji Brown Jackson and Brett Kavanaugh addressed criticism of the court’s handling of emergency petitions at a lecture series Monday honoring former US Attorney and Judge Thomas J. Flannery. The event was held at the federal courthouse in Washington that houses the US District Court and US Court of Appeals for the District of Columbia Circuit, where both justices previously served.
Jackson, a frequenter dissenter in emergency orders, said the court’s increasing willingness to intervene before lower courts fully resolve disputes risks creating a “warped” system.
“I think it is not serving the court or our country well at this point,” Jackson, who was elevated to the court by President Joe Biden in 2022, said.
The justices have acted on more than two dozen emergency petitions dealing with actions by the administration since President Donald Trump resumed office last year. In most cases, the court has sided with the Trump administration.
In a further unusual step, Justice Neil Gorsuch—in a concurring opinion joined by Kavanaugh—admonished lower courts for failing to treat the Supreme Court’s emergency orders as precedential.
Kavanaugh on Monday defended the court’s approach, attributing the rise in emergency petitions in part to congressional gridlock that has prompted presidents to test the limits of executive authority.
“This is not a new phenomenon in the Trump administration,” he said.
Kavanaugh and Jackson have expressed similar views in prior public remarks, but it’s unusual for sitting justices to appear together—particularly in a setting where they stake out opposing positions about how the court operates.
Tuesday’s discussion was attended by hundreds of members of the legal profession, including a number of other sitting federal judges. At one point, Jackson’s criticism of how the court has handled emergency cases earned a round of applause from the audience.
Kavanaugh, a Trump nominee who joined the court in 2018, said the court has been consistent with its approach
During the Biden administration, he said, former US Solicitor General Elizabeth Prelogar argued that nationwide injunctions issued by lower courts—including one that would have blocked access to the abortion drug mifepristone—required the Supreme Court’s emergency intervention. The court granted that stay and others the Biden administration sought, including lifting an injunction that blocked efforts to regulate ghost guns.
Kavanaugh said the justices didn’t relish the increase in emergency petitions—describing last summer, when they hit their peak, as “brutal.” But, he said, they are required to take action one way or another when emergency relief is sought.
“None of us likes this,” Kavanaugh said. “Judges like our process.”
The justices have occasionally scheduled oral arguments before resolving emergency applications in recent terms, a move seen as responding in part to criticism that shadow-docket decisions lack transparency.
The justices heard arguments on an emergency petition from the Trump administration late last term after multiple lower courts blocked enforcement of an executive order aimed at limiting birthright citizenship for children born to parents in the US illegally. The case is scheduled to return to the court for argument on the merits next month.
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