The exchange unfolded during an annual lecture in Washington, D.C., where Jackson, appointed by President Biden, sharply criticized what she described as the court’s growing readiness to grant urgent relief to the Trump administration through its emergency docket, often dubbed the "shadow docket," a trend she called a "problem," according to Fox News.
She argued that the court’s pattern of siding with President Donald Trump in these fast-moving disputes—frequently by 6-3 margins—has tilted the scales in favor of executive power at the expense of careful judicial review. The three liberal justices, including Jackson, have routinely dissented in such cases, warning that the court is reshaping national policy without the transparency and deliberation that traditionally accompany full merits decisions.
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"The administration is making new policy ... and then insisting the new policy take effect immediately, before the challenge is decided," Jackson said, as reported by The Associated Press and NBC News.
"This uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem."
Jackson pressed the point that this pattern undermines both institutional credibility and constitutional balance.
"It's not serving the court or this country well," she said, framing the issue as one of judicial overreach into rapid-fire policymaking that should be restrained, not encouraged.
Kavanaugh, a Trump appointee, pushed back, insisting that the court’s handling of emergency applications is not unique to the Trump era and that the same standards apply to the Biden administration.
He suggested that what has changed is not the court, but the modern presidency itself, which increasingly relies on executive orders as Congress deadlocks and passes less substantive legislation.
Kavanaugh observed that presidents of both parties now "push the envelope" more aggressively through unilateral action.
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"Some are lawful, some are not," Kavanaugh said, later adding, "None of us enjoy this."
The discussion took place in a federal courtroom during the Thomas Flannery lecture, honoring the late U.S. District Judge for Washington, D.C., with several prominent federal judges, including Judge James Boasberg, in attendance. The setting underscored how the emergency docket—once a relatively obscure procedural tool—has become a central battleground over separation of powers, executive authority, and the proper role of the judiciary.
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Jackson’s criticism did not emerge in a vacuum; she has been perhaps the court’s most outspoken dissenter on emergency matters.
In August, she castigated the majority for what she described as "lawmaking" from the bench when the court allowed, on an emergency basis, the National Institutes of Health to cancel roughly $738 million in grant funding.
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"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," Jackson wrote in that dissent.
Her language reflected a broader concern on the left that the conservative majority is using the emergency docket to entrench policy outcomes favorable to the Trump administration without full briefing or argument.
The Trump administration has been the target of hundreds of lawsuits and numerous adverse rulings in lower courts, yet the solicitor general’s office has been selective in elevating disputes to the Supreme Court. When it does, emergency applications allow the government to bypass the usual, slower process—complete with extensive written submissions and oral arguments—and instead seek swift intervention against restraining orders and injunctions.
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The administration has filed roughly 30 such emergency applications and prevailed about 80% of the time, according to the Brennan Center for Justice. Through this channel, the Supreme Court has permitted Trump’s mass firings to proceed and has reined in the use of nationwide injunctions that liberal judges have increasingly deployed to block conservative policies nationwide.
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The court has also used the emergency docket to clear the way for deportations and immigration enforcement actions that critics on the left denounce as harsh, while conservatives view them as long-overdue efforts to restore the rule of law at the border.
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In addition, the justices have allowed the government, at least for now, to discharge transgender service members from the military, a policy defended by many on the right as necessary to preserve unit cohesion and readiness.
Yet Trump has not prevailed in every emergency appeal, underscoring that the court is not a rubber stamp for executive power. The justices required his administration to provide more notice to alleged illegal immigrants facing removal under the Alien Enemies Act and sided with a lower court that found the president had improperly federalized the National Guard as part of an immigration crackdown in Chicago.
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For conservatives, the debate over the emergency docket highlights a deeper struggle: whether unelected judges in lower courts can freeze national policy indefinitely, or whether a duly elected president retains the authority to act swiftly in areas like immigration, national security, and military affairs. As Jackson and Kavanaugh’s exchange made clear, the Supreme Court’s answer to that question will continue to shape the balance between judicial restraint and executive power long after the current administration leaves office.
