Sharing a stage at an annual lecture in memory of former federal judge and prosecutor Thomas A. Flannery, Supreme Court Justices Ketanji Brown Jackson and Brett Kavanaugh sparred over how the justices handle emergency orders that allow President Donald Trump to move forward with parts of his agenda while legal challenges remain unresolved. The lecture took place in a federal courtroom filled with judges, with Jackson and Kavanaugh seated a few feet apart and questioned by a judge who asked questions of both justices.
Jackson used the occasion to criticize what she described as a pattern in the court’s emergency docket. She said the situation was unfolding like this: “The administration is making new policy … and then insisting the new policy take effect immediately, before the challenge is decided.” Jackson said the “uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem,” according to remarks that drew applause from the audience.
Jackson also argued that the court’s emergency interventions can distort how cases develop. She said the court was “creating a kind of warped” process by intervening early in a case and effectively “predicting the outcome before arguments are fully developed,” as she described it during the lecture. In her remarks, Jackson repeated a complaint she and other liberal justices have raised in dissents about how closely the Supreme Court should supervise lower courts during their review.
Jackson asked whether the Supreme Court should step in when lower courts are deciding. “Should the Supreme Court be superintending the lower courts when they are hearing and deciding the issues?” she said. Kavanaugh responded by focusing on the practical difficulty of emergency litigation and on the closeness of many of the justices’ decisions at that stage.
Kavanaugh said he agreed with the premise that the issues are not simple. He said that the justices’ disputes are “often complicated and cases, close,” and he acknowledged the human toll of deciding those disputes quickly, saying, “None of us enjoys this.” He also pointed to the broader policy environment for why emergency orders are pursued.
As the lecture also touched on how executive branches test the edges of the law, Kavanaugh told the audience that “The Justice Department’s rush to the Supreme Court is not unique to the Trump administration,” explaining that as enacting legislation through Congress becomes harder, administrations “push the envelope in regulations. Some are lawful, some are not.” He said some critics of the recent emergency orders had no objection when the justices allowed challenged Biden administration policies to take effect while those cases were still proceeding.
Several judges in attendance were connected to high-profile challenges to administration actions. The audience included U.S. District Judge James Boasberg, whose clash with the administration over deportation flights to a prison in El Salvador prompted Trump to call for Boasberg’s impeachment, according to the account of the lecture. Also present was U.S. District Judge Royce Lamberth, who had ruled two days earlier that Kari Lake, Trump’s choice to lead the U.S. Agency for Global Media, did not have legal authority to take actions she had taken to largely dismantle the Voice of America.
Neither Jackson nor Kavanaugh mentioned judges by name during their remarks. But Jackson’s central line of criticism echoed the dissents she has written in emergency cases, focusing on whether the court’s involvement on the emergency docket amounts to premature engagement before arguments are fully developed, while Kavanaugh defended emergency review as part of a strained legal and regulatory landscape in which close cases reach the Supreme Court.