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Last
night,
at
an
event
honoring
the
late
Judge
Thomas
Flannery
of
the
U.S.
District
Court
of
Washington,
D.C.,
Justices
Ketanji
Brown
Jackson
and
Brett
Kavanaugh
found
themselves
on
opposite
sides
of
one
of
the
Supreme
Court’s
most
controversial
procedural
tools:
the
so-called
shadow
docket.
When
asked
about
the
emergency
docket
by
moderator
Judge
Paul
Friedman,
Justice
Jackson
was
not
subtle
about
her
concerns.
“The
administration
is
making
new
policy
…
and
then
insisting
the
new
policy
take
effect
immediately,
before
the
challenge
is
decided,”
Jackson
said,
drawing
applause
from
the
room.
“This
uptick
in
the
court’s
willingness
to
get
involved
in
cases
on
the
emergency
docket
is
a
real
unfortunate
problem.”
According
to
Jackson,
the
practice
risks
distorting
the
judicial
process
itself.
The
Court
is
“creating
a
kind
of
warped”
legal
process,
she
said,
effectively
predicting
how
a
case
will
come
out
before
the
parties
have
fully
developed
the
arguments.
Justice
Kavanaugh,
however,
was
having
none
of
the
suggestion
that
the
emergency
docket
is
some
sort
of
bespoke
service
for
one
particular
president.
Even
though,
you
know,
scoreboard.
(A
recent
analysis
by
Court
Accountability
found
that
the
Trump
administration
has
enjoyed
an
eye-popping
84%
success
rate
at
the
Supreme
Court,
with
much
of
that
success
coming
through
emergency
orders
rather
than
the
Court’s
traditional
merits
docket.)
Kavanaugh
pushed
back,
arguing
that
emergency
applications
are
a
structural
feature
of
modern
governance,
not
a
partisan
one.
“It’s
not
unique
to
the
Trump
administration,”
he
explained.
As
passing
legislation
through
Congress
becomes
harder,
administrations
increasingly
rely
on
executive
actions
and
aggressive
regulatory
efforts.
That
inevitably
leads
to
litigation,
and
requests
for
emergency
relief.
Administrations
“push
the
envelope
in
regulations,”
Kavanaugh
said.
“Some
are
lawful,
some
are
not.”
In
his
telling,
critics
of
the
Court’s
emergency
work
have
“short
memories.”
The
Biden
administration
also
regularly
sought
emergency
intervention
when
lower
courts
blocked
its
policies.
And
when
those
requests
land
at
One
First
Street,
the
Court
has
to
do
something
with
them.
Jackson,
who
clerked
at
the
Court
around
the
same
time
as
Kavanaugh,
wasn’t
convinced
that
the
Court’s
current
posture
is
inevitable.
“I
think
it’s
because
the
Supreme
Court
has
shown
a
willingness
to
grant
these
emergency
motions,”
she
replied.
“Brett
will
remember
that
when
we
clerked
some
20
years
ago,
this
was
not
the
Supreme
Court’s
stance,”
Jackson
added.
“Just
because
these
motions
were
filed
[didn’t
mean]
the
Court
actually
had
to
entertain
and
grant
them
on
their
merits.”
Justice
Jackson
thinks
the
Court
should
take
a
page
from
old
school
parents
and
say
no
more
often.