Justice Ketanji Brown Jackson used a rare public appearance alongside Justice Brett Kavanaugh on Monday to forcefully criticize how the Supreme Court has handled emergency applications, calling the court's increasing willingness to intervene "a real unfortunate problem." Kavanaugh, sitting beside her at the federal courthouse in Washington, pushed back and defended the court's actions.
The hourlong event, attended by lawyers and judges, including Chief Judge James E. Boasberg, laid bare the internal fault lines on a court that has repeatedly stepped in to unblock the Trump administration's agenda after lower courts tried to stop it.
According to NBC News, Jackson did not hold back. She characterized the court's emergency docket work as fundamentally flawed, arguing that it distorts the judicial process itself.
"I just feel like this uptick in the court's willingness to get involved ... is a real unfortunate problem."
She called the emergency proceedings "a warped kind of proceeding" and declared flatly that the practice is "not serving the court or this country well." Her proposed solution was straightforward: if the court were "stingier about granting them," the filings would drop. She also claimed the uptick "affects how lower court judges approach cases," suggesting the court's emergency interventions ripple downward through the entire judiciary.
This is a revealing complaint. What Jackson frames as a procedural concern is, at bottom, frustration that the court's conservative majority keeps clearing the path for lawful executive action. The lower courts she worries about "approaching cases" differently are, in many instances, the same courts that have issued sweeping injunctions to stall presidential authority. When the Supreme Court steps in to lift those blocks, the system is working exactly as designed. The problem Jackson identifies is not a broken process. It is a process producing outcomes she opposes.
Kavanaugh offered a measured but pointed rebuttal. He noted that government emergency applications to the court are "not unique to Trump," pointing out that the Biden administration made similar requests, "albeit at a lower rate." He also identified the structural cause that Jackson conspicuously ignored: presidents in recent years have relied more heavily on executive orders because persuading Congress has become increasingly difficult. Those orders are then immediately challenged in court, which generates the very emergency filings Jackson objects to.
In other words, the uptick in emergency applications is not a symptom of a rogue Supreme Court. It is the predictable result of an executive branch governing through its constitutional authority and a sprawling legal apparatus rushing to the nearest friendly courtroom to stop it.
Kavanaugh insisted on institutional neutrality:
"We have to have the same position regardless of who is president."
Jackson said she agreed with that statement. Whether her broader critique is consistent with it is another question entirely.
In the last year, the Supreme Court has allowed the Trump administration to fire thousands of federal workers, assert control over previously independent federal agencies, and implement key elements of its immigration policy. Each of these actions had been blocked by lower courts. Each time, the Supreme Court's conservative majority intervened to let the executive branch function.
This is what Jackson calls a problem. But consider what the alternative looks like: a single district judge, sometimes hundreds of miles from Washington, issuing a nationwide injunction that freezes the agenda of a president elected by tens of millions of Americans. The Supreme Court stepping in to restore executive authority is not an abuse of the emergency docket. It is the court performing its most basic function, ensuring that one branch of government does not strangle another.
The left has grown comfortable with judge-shopping as a governing strategy. When a policy they oppose survives the legislative or electoral process, they route it through the judiciary. When the Supreme Court clears the obstruction, they call the process broken.
Both justices acknowledged the rising temperature around the judiciary. Jackson expressed concern about "the increase in violent threats against judges," calling it "unfortunate because it relates to a lack of understanding about judicial independence." Kavanaugh praised Chief Justice John Roberts, saying he had "picked his spots" in responding to criticism. Roberts recently put out a statement rebuking suggestions that judges should be impeached for ruling against the administration.
Notably, Chief Judge Boasberg, one of the judges some Republicans want to impeach, was among those at Monday's event. His presence added a layer of gravity to the discussion that neither justice could ignore.
Threats against judges are unacceptable regardless of the source. That principle is not complicated, and it does not require elaborate framing about "judicial independence" to state clearly. But the conversation about accountability is a separate one. Judges who issue sweeping injunctions against the elected executive should expect scrutiny. Scrutiny and threats are not the same thing, and conflating them serves only those who want to insulate the judiciary from any public accountability at all.
Kavanaugh noted that the court has, in some cases, opted to hear full oral arguments and issue longer written rulings in response to criticism of the shadow docket. That is a reasonable concession to transparency. But the core dynamic is not going to change. As long as lower courts continue issuing aggressive nationwide injunctions against executive action, the Supreme Court will continue fielding emergency applications. And as long as the conservative majority holds, it will continue lifting those injunctions when the law supports it.
Jackson acknowledged as much, conceding that "there's no easy answer, for sure." She is right about that, though perhaps not in the way she intended. The answer is not for the Supreme Court to stop intervening. The answer is for lower courts to stop overreaching.
Until that happens, expect more hourlong public events where liberal justices call the process broken and conservative justices explain, patiently, that it is working.
