The dynamics within the Supreme Court have come under scrutiny as Justice Ketanji Brown Jackson critiques the use of emergency orders that have favored the Trump administration. Describing these orders as “scratch-paper musings,” Jackson questions their robustness and transparency.
Justice Jackson, the newest member of the court, highlighted the issue during a talk at Yale Law School, referring to approximately two dozen orders from last year that allowed policies by President Donald Trump to proceed despite being deemed likely illegal by lower courts. These temporary orders have enabled the implementation of significant parts of Trump’s policy agenda, including immigration and federal funding adjustments.
During her address, Jackson critiqued the court’s practice of issuing these orders without substantial explanation, labeling them as “back-of-the-envelope, first-blush impressions.” She expressed concern that these orders, when enforced by lower courts, disregard the people affected, rendering them “oblivious and thus ring hollow.”
Furthermore, Jackson contested the notion that preventing a president’s policy from taking effect constitutes significant harm, especially if the policy is illegal. “The president of the United States, though he may be harmed in an abstract way, he certainly isn’t harmed if what he wants to do is illegal,” she remarked during a Q&A session with Yale Law School dean Cristina Rodriguez.
Justice Sonia Sotomayor has echoed similar sentiments regarding emergency orders, raising questions about the conservative majority’s approach at an event in Alabama. Both justices have voiced their dissent in previous opinions and public appearances, including a joint event with Justice Brett Kavanaugh.
Jackson observed a shift in the court’s willingness to engage with cases early in the legal process, noting its increased involvement in divisive policy issues. “There is value in avoiding having the court continually touching the third rail of every divisive policy issue in American life,” she stated.
Aligning with Justices Sotomayor and Elena Kagan, Jackson has often dissented on these issues. She expressed hope that her public remarks might serve as “a catalyst for change” regarding how the Supreme Court handles emergency orders.
