Ketanji Brown Jackson condemns conservative justices’ pro-Trump orders

The Supreme Court justice Ketanji Brown Jackson has delivered a sustained attack on her conservative colleagues’ use of emergency orders to benefit the Trump administration, calling the orders “scratch-paper musings” that can “seem oblivious and thus ring hollow”.Jackson, the court’s newest justice, delivered a lengthy assessment of roughly two dozen court orders issued last year that allowed Donald Trump to put in place controversial policies on immigration, steep federal funding cuts and other topics, after lower courts found they were probably illegal.While designed to be short-term, those orders have largely allowed the US president to move ahead, for now, with key parts of his sweeping conservative agenda.Jackson spoke for nearly an hour on Monday at Yale Law School, which posted a video of the event on Wednesday.Last week, Justice Sonia Sotomayor similarly talked about emergency orders in an event at the University of Alabama in which she took issue with the approach of the conservatives on the bench.The court’s emergency docket consists of appeals in cases that are still in the lower courts, where the country’s highest court is asked to make a swift intervention and does so, without hearing oral arguments. The second Trump administration has filed 34 emergency applications and the court has sided with Trump in most of the cases, the Hill reported.Trump was able to nominate three justices during his first term in the White House after he won the 2016 election, which skewed the balance so that conservative justices now number six on the nine-member bench. Joe Biden nominated Jackson to replace the retiring Stephen Breyer in 2022, keeping the number of justices considered liberal at three.Jackson has previously criticized the emergency orders in dissenting opinions and in an unusual appearance with Justice Brett Kavanaugh last month. But her talk at Yale, addressing the public rather than the other eight justices, was notable.She referred to orders, often issued with little or no explanation, as “back-of-the-envelope, first-blush impressions of the merits of the legal issue”.Worse still, Jackson said, was that the court insists those “scratch-paper musings” be applied by lower courts in other cases.The orders suffer from an additional problem, she said: a failure to acknowledge that real people are involved, making them “seem oblivious and thus ring hollow”.Jackson also rejected the court’s assessment that preventing the president from putting his policy in place also is a harm that often outweighs what the challengers to a policy might face.“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,” Jackson said during a question-and-answer session with the law school dean, Cristina Rodriguez.The court used to be reluctant to step into cases early in the legal process, she said. “There is value in avoiding having the court continually touching the third rail of every divisive policy issue in American life,” Jackson said.While she said she couldn’t explain the change, “in recent years, the Supreme Court has taken a decidedly different approach to addressing emergency stay applications. It has been noticeably less restrained, especially with respect to pending cases that involve controversial matters.”Jackson, often joined by Sotomayor and Justice Elena Kagan, has frequently dissented.There have been conversations about emergency orders among the justices, Jackson said, but she decided to speak publicly with the goal of being “a catalyst for change”.Meanwhile, later on Wednesday, Sotomayor issued a rare public statement of apology, expressing regret for remarks she made about Kavanaugh last week when she criticized him in terms that referred to his family.“At a recent appearance at the University of Kansas School of Law, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate,” Sotomayor said in the statement, as reported by CNN. “I regret my hurtful comments. I have apologized to my colleague.”Last September, Kavanaugh issued a concurring opinion in a Supreme Court majority decision that lifted an order barring the federal immigration authorities from stopping people solely based on their race, language or job, granting a stay against a restraining order from another judge that found “roving patrols” of immigration agents were conducting indiscriminate arrests in Los Angeles during the summer crackdown there.In her address last week, Sotomayor had reportedly taken issue with Kavanaugh who had, in her opinion, downplayed the injustice of ICE stops based on ethnicity, with her saying: “This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.”It is widely understood in Supreme Court decorum that while the justices may disagree with each other, sometimes publicly, on matters of law and fairness, they do not bring up each others’ families. That contrasts sharply with Donald Trump who in February called Neil Gorsuch and Amy Coney Barrett, whom he nominated for the court, an “embarrassment to their families”, after the conservative justices joined the liberals in blocking the president’s use of trade tariffs.The Associated Press contributed reporting