Supreme Court Justices Ketanji Brown Jackson and Brett Kavanaugh squared off over the court's emergency docket during a rare, candid discussion at an annual lecture honoring the late Judge Thomas Flannery of the U.S. District Court of Washington, D.C., on Monday night. The exchange, which played out in a courtroom with several federal judges looking on, including Judge James Boasberg, laid bare a fundamental disagreement about how the court handles the flood of emergency cases that have defined this legal era.
Jackson, a Biden appointee and one of three liberal justices, signaled that the court's willingness to side with President Donald Trump on the emergency docket was a "problem." Kavanaugh, a Trump appointee, pushed back directly, noting the court's approach to emergency requests was not unique to this administration and that the justices handled the Biden administration the same way.
The split tells you everything about where each justice stands, and why the emergency docket has become the left's newest institutional grievance.
Jackson framed the issue as one of process, according to Fox News. She argued the Trump administration is forcing the court's hand by implementing policy and demanding immediate effect before legal challenges can be resolved.
"The administration is making new policy ... and then insisting the new policy take effect immediately, before the challenge is decided."
She went further, calling the uptick in emergency docket activity "a real unfortunate problem" and declaring it is "not serving the court or this country well."
Then came the rhetorical flourish that revealed the real frustration. Jackson invoked "Calvinball," the game from the comic strip where rules change on the fly:
"This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins."
This is a striking claim from a sitting justice. It essentially accuses her own colleagues of rigging outcomes. But the charge collapses under the weight of the court's actual record.
The Trump administration has brought about 30 emergency applications to the Supreme Court and secured victories about 80% of the time, according to the Brennan Center for Justice. That's a strong record, but it's not the rubber stamp Jackson implies. The court has ruled against the administration on notable occasions.
Consider what the court has actually done through the emergency docket:
That last item is important. A court that "always" sides with the administration doesn't block the National Guard deployment. A court playing Calvinball doesn't impose additional notice requirements on deportation proceedings. The wins are real, but so are the losses. The 80% figure means roughly one in five emergency applications went against the president.
What Jackson is really objecting to is that the court isn't blocking the administration more often. She wants the emergency docket to serve as an additional veto point against executive action. When it doesn't, she calls it broken.
Kavanaugh's response was measured but substantive. He noted that presidents "push the envelope" more with executive orders because Congress is passing less legislation. That observation deserves more attention than it received.
The emergency docket didn't become prominent because the Supreme Court changed. It became prominent because the other branches did. Congress has spent years punting on major policy questions, from immigration to federal spending to military readiness. Presidents of both parties have filled the vacuum with executive action. Opponents of those actions have raced to friendly courts for injunctions. And the Supreme Court has been forced to sort out the mess on an accelerated timeline.
"Some are lawful, some are not."
That was Kavanaugh's assessment of executive orders generally. It's not a defense of every Trump action. It's an acknowledgment of legal reality. The court evaluates each case. Sometimes the president wins. Sometimes he doesn't.
Kavanaugh also offered a human note, saying of the emergency workload that "none of us enjoy this." That rings true. Emergency applications demand rapid review without the full briefing and oral argument that characterize the court's normal process. No justice, conservative or liberal, prefers that to the regular order.
The left has branded the emergency docket the "shadow docket" for a reason. The term itself is designed to delegitimize. It implies secrecy, when in reality the court's emergency orders are public. It implies deviation from norms, when emergency applications have existed for as long as the court has.
What has changed is volume. The Trump administration has faced hundreds of lawsuits. Many of those lawsuits produce sweeping lower-court injunctions that freeze federal policy nationwide. When the government appeals those injunctions on an emergency basis, the Supreme Court has to decide: does the policy stay frozen, or does the elected executive get to govern while litigation proceeds?
Emergency decisions have often broken 6-3 in favor of the president. Jackson, as one of three liberal justices, has been perhaps the most vocal dissenter. In August, she lambasted the Supreme Court majority for "lawmaking" from the bench in a dissent to an emergency decision that temporarily allowed the National Institutes of Health's cancellation of about $738 million in grant money.
Her dissents are consistent. They are also consistently on the losing side. And that is what drives the "Calvinball" complaint. When you lose most of the time on a court with a 6-3 conservative majority, the temptation is to blame the process rather than reckon with the fact that your legal position simply doesn't command a majority.
Kavanaugh identified the real culprit: a Congress that won't legislate. If Congress passed a clear immigration law, presidents wouldn't need to push the envelope with executive orders. If Congress funded or defunded agencies with specificity, courts wouldn't have to sort out the boundaries of executive discretion on emergency timelines. If Congress did its job, the emergency docket would shrink on its own.
But blaming Congress doesn't generate the same headlines as accusing your colleagues of rigging the game. Jackson chose the headline.
The exchange Monday night was illuminating, not because it revealed some crisis at the court, but because it showed exactly where each side wants the pressure applied. Jackson wants the court to be a bigger obstacle to executive action. Kavanaugh wants the other branches to stop dumping their failures at the court's doorstep.
Only one of those positions asks the system to work the way it was designed.
