Jackson Says Court’s Emergency Orders Risk ‘Zombie’ Proceedings

Justice Ketanji Brown Jackson warned the Supreme Court’s handling of its emergency docket risks creating “zombie proceedings” in lower courts, continuing a pattern of public criticism from the court’s liberal minority.

Speaking Monday at Yale Law School, Jackson said the court’s increasing reliance on unexplained emergency decisions could create situations in which cases proceed in lower courts despite the justices appearing to already have weighed in on the merits of the dispute.

“I mean, really, what is left for the lower courts to do?” Jackson said.

Her remarks add to a stream of criticism from the court’s three liberal justices over its use of the emergency docket, which has seen a surge in filings tied to lawsuits over actions by President Donald Trump’s administration. The government has largely succeeded in its emergency requests for relief, drawing objections from Jackson and her liberal colleagues who argue the court is too quick to intervene.

Jackson’s comments at Yale came a week after another justice, Sonia Sotomayor, took an unusually public swipe at Brett Kavanaugh over his concurrence in a decision allowing immigration stops to resume in Los Angeles. Sotomayor suggested Kavanaugh, the son of two lawyers, didn’t understand the harms even temporary stops can have on hourly workers.

Jackson, too, accused the court of not putting enough weight on the real-world harms its decisions can have—saying its decisions at times come across as “utterly irrational.”

“We cannot expect the public to have faith in our judicial system if, without clear explanation, we consistently green-light harmful acts that do real damage to litigating plaintiffs without a court decision fully and fairly determining the lawfulness of that challenged conduct on the merits,” Jackson said.

Jackson, one of two current justices with prior experience as a federal district judge, said unexplained emergency orders also risk diminishing the role of lower courts whose decisions are often paused without detailed reasoning.

Debate over the court’s emergency rulings has also spilled over into the lower courts. Judges on the US Court of Appeals for the Fourth Circuit last week traded barbs over how much weight to give the court’s rulings on its emergency docket.

One judge argued that reading too much into interim rulings with little explanation represents “judicial activism at its worst,” prompting a response from their colleague rebuking his “rhetorical assault upon the Supreme Court.”

Kavanaugh and other members of the court’s conservative bloc have defended the uptick in unexplained emergency orders. During a joint appearance with Jackson in March, Kavanaugh said the court was increasingly forced to weigh in as the executive branch attempted to push through policy changes itself due to congressional inaction.

“None of us likes this,” Kavanaugh said.

The court has shown some signs of adjusting its approach. Last term, the justices took the unusual step of hearing oral argument on an emergency application as the Trump administration sought relief from injunctions blocking enforcement of an executive order targeting birthright citizenship. The dispute returned to the court for full merits review earlier this month.