It’s uncommon to witness Supreme Court justices publicly debating one another. Typically, their disagreements surface months later in the form of written opinions after a case has been decided. The justices rarely share the same platform to discuss how the Court is managing ongoing legal disputes.
However, that changed on Monday when Justice Ketanji Brown Jackson and Justice Brett Kavanaugh took the stage together and openly squared off about how the Supreme Court has dealt with emergency appeals related to President Donald Trump’s policies.
The discussion focused on the Court’s emergency docket, which includes cases that arise when lower courts block federal policies, prompting the administration to seek the Supreme Court’s permission to implement those policies while litigation is still in progress. This process has become a crucial legal battleground for Trump’s agenda. The Court has frequently intervened after lower courts halted various policies, allowing the administration to move forward while the lawsuits have yet to be resolved.
Jackson, who couldn’t define what a woman was at her confirmation hearing and who injects her left-wing activism into nearly every case, often dissents in these emergency rulings, criticized the Court’s readiness to step in early during such cases at Monday’s event:
“The administration is making new policy … and then insisting the new policy take effect immediately, before the challenge is decided. This uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem.”
A problem? It could also be that a majority of justices on the nation’s highest court a) understand there is constant left-wing lawfare being waged against this president to hamper his agenda; and b) as head of the Executive Branch, President Trump has the constitutional authority to govern within the parameters of his position.
Jackson contended that intervening too early risks altering the functioning of the judicial process. Lower courts are intended to establish the factual record and evaluate legal arguments before the Supreme Court steps in. If the Court intervenes prematurely, it can indicate how a case may ultimately be resolved before it is thoroughly debated.
“Should the Supreme Court be superintending the lower courts when they are hearing and deciding the issues?”
Kavanaugh was having none of it, noting the surge in appeals is reflective of how modern presidents … govern.
“The Justice Department’s rush to the Supreme Court is not unique to the Trump administration,” Kavanaugh said, noting that presidents increasingly rely on executive actions as legislation becomes harder to pass through Congress. As a result, administrations “push the envelope in regulations. Some are lawful, some are not.”
He added that prior administrations have gone to the nation’s highest court when lower courts intervene to stop certain policies from going into effect. “None of us enjoys this,” Kavanaugh said of the trend.
Jackson cautioned that early intervention could affect how lower courts address cases before all arguments have been fully presented. Kavanaugh countered that the justices are simply responding to the fact that significant policy disputes are now being resolved in the courts rather than in Congress.
Typically, these disputes unfold quietly in written opinions months later. However, this time, the discussion took place in a more public fashion.
