{"id":39,"date":"2026-05-24T18:10:19","date_gmt":"2026-05-24T18:10:19","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=39"},"modified":"2026-05-24T18:10:19","modified_gmt":"2026-05-24T18:10:19","slug":"a-docket-in-the-shadow-of-bigger-problems","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=39","title":{"rendered":"A docket in the shadow of bigger problems"},"content":{"rendered":"
\n

Major Questions is a recurring series by Adam White, which analyzes the court\u2019s approach to administrative law, agencies, and the lower courts.<\/em><\/p>\n

Read more Daubert dust-up and AEDPA angst<\/a><\/p>\n

Good fences make good neighbors. But do bad neighbors make good analogies? Justice Ketanji Brown Jackson thinks so, but I\u2019m less convinced.<\/p>\n

Speaking at Yale Law School last month, Jackson sketched out her sense of how the Supreme Court should approach emergency petitions arising from the executive branch\u2019s orders and actions. When a district court freezes the administration\u2019s latest policy, and the administration files an emergency-docket petition to undo the lower court\u2019s action, what should the Supreme Court do?<\/p>\n

Traditionally, the court balances several factors, which Justice Brett Kavanaugh :<\/p>\n

To obtain a stay from this Court, the moving party must demonstrate a fair prospect that, if the District Court\u2019s decision were affirmed on appeal, this Court would grant certiorari and reverse. The moving party also must show a likelihood that it would suffer irreparable harm if a stay were not granted. Those two factors are the \u201cmost critical.\u201d Particularly in \u201cclose cases,\u201d the Court also considers the balance of harms and equities to the parties, including the public interest.<\/p><\/blockquote>\n

But at Yale, Jackson expressed significant disagreements with this approach.<\/p>\n

\u201cToday, the court routinely opts to enter the fray,\u201d she contended, \u201cand it fails to acknowledge the harms that follow when the Supreme Court of the United States consistently and casually\u201d reverses the lower courts.<\/p>\n

She then gave her colleagues on the court a blunt recommendation: In reviewing emergency-docket stay applications at the early stage of a case, they should focus more on the facts \u2013 on the balance of equities (that is, the harms) at stake on either side \u2013 than on the law. \u201cI propose that the equities be evaluated first,\u201d she said, \u201cand that the merits enter only as a plausibility check after the relative harms have been assessed,\u201d she explained.<\/p>\n

And this is where her \u201cbad neighbors\u201d analogy comes in.<\/p>\n

To illustrate the court\u2019s emergency docket and the cases that petition for emergency intervention, she offered a parable. \u201cImagine two next-door neighbors, both of whom claim ownership of a backyard shed that appears to straddle the line between their two properties.\u201d Neighbor A wants to knock down the shed and plant a garden, in the hopes of hosting a home-grown dinner party in a few months. Neighbor B wants to keep the shed, and he sues to protect it. Soon the trial judge grants Neighbor B a preliminary injunction to preserve the shed while the underlying property-line fight can be fully adjudicated.<\/p>\n

In terms of avoiding irreparable harms, the preliminary injunction makes sense: if Neighbor A can destroy the shed while the case is still being litigated, then Neighbor B effectively loses the case (and the shed) before it can actually be litigated. On the other hand, if Neighbor A must wait a while to plant his garden, it may be costly but it\u2019s hardly irreparable harm, relatively speaking.<\/p>\n

So, if the trial court issues the preliminary injunction and the appellate court lets it stand, what should the Supreme Court do when Neighbor A comes asking the justices to stay (that is, lift) the injunction? \u201cWe would set aside the merits question of who owns the shed,\u201d Jackson said, \u201cand start by evaluating who has the better argument about the intervening harms if the shed is torn down or left standing.\u201d At this early stage in the litigation, when the courts are simply trying to decide what temporary rules will govern the parties while the litigation plays out, the Supreme Court should focus foremost on the potential harms to the challengers and the government, and turn to the underlying legal question only if the litigant who secured the preliminary injunction has virtually no chance of eventually winning the legal issue at the crux of the case.<\/p>\n

By that logic, Jackson argues, the Supreme Court\u2019s recent emergency docket decisions get the whole thing backward: too much prejudgment of the legal issues, too little focus on the facts \u2013 and far too little deference to the factual judgments of the district judges. For Jackson, who long served as a district judge, that last part is key: by her eye, trial judges are well situated for \u201cassessing the credibility of witnesses and weighing disparate assertions, things that appellate courts\u201d \u2013 including the Supreme Court \u2013 \u201creally are not well equipped to do.\u201d<\/p>\n

And Jackson argues, this creates much more fundamental problems. When the court\u2019s emergency docket decisions focus too much on the merits, it incentives litigants to use that docket as a fast-pass for quick adjudication of contested legal questions, which risks distorting the litigation process, disempowering trial judges, and undermining public confidence in the Supreme Court\u2019s own impartiality.<\/p>\n

Having reflected on her arguments for a few weeks, I don\u2019t think Jackson did justice to the full problem that the court is facing.<\/p>\n

There is no doubt, as Jackson recognized, that the modern emergency docket raises real questions about the judicial process. At the end of my time on President Joe Biden\u2019s Supreme Court Commission, it was that the court\u2019s vast discretionary powers \u2013 not just in granting interim relief, but also in granting full-merits review \u2013 would benefit from reform. The court works best when it applies clear rules written by Congress.<\/p>\n

But Jackson\u2019s argument focuses on a very, very narrow slice of the situation, and leaves almost everything as given. In that respect, the neighbor-shed analogy is particularly inapt for the very kind of real-world cases that Jackson explicitly focuses on: high-profile, high-stakes policy litigation between strategic litigators and presidential administrations.<\/p>\n

Read more In immigration cases, the court doesn\u2019t just settle disagreements<\/a><\/p>\n

These cases don\u2019t begin with two neighbors debating a property line. They begin with a Democratic or Republican administration announcing a major new policy \u2013 as Jackson rightly put it, \u201ca dramatic change to an existing government policy or program.\u201d This policy could have direct, concrete effects on many people, often for the worse; but it could simultaneously have broad, diffuse effects on many other people, often for the better.<\/p>\n

What comes next, then, is now a familiar feature of modern government: lawsuits are filed, and not randomly. Rather, strategic litigants file lawsuits whenever possible in the district court that seems likely to rule in their favor. During Democratic administrations, we see a lot of lawsuits in a few red states. During Republican administrations, by contrast, we see a lot of lawsuits in a few blue states.<\/p>\n

To this, Jackson worries that the Supreme Court\u2019s emergency-stay decisions create the wrong incentives among \u201csavvy parties\u201d seeking multiple \u201cbites at the apple.\u201d But the same could be said (and often is<\/em> said) about the incentives and appearances of a system where district courts, handpicked by the plaintiffs, can choose to immediately freeze a federal program for months or years. Yet Jackson\u2019s analysis ignores all of that.<\/p>\n

At the same time, a presidential administration has enormous power to suddenly announce a new program and, if left unchecked, implement that program even while its very legality is being challenged in the courts. (I wrote about this last year for The Dispatch, as the justices considered Trump v. CASA<\/em>.) The last several presidential administrations became much more creative and aggressive in trying to implement policies faster than courts could adjudicate them, and the court\u2019s emergency docket must have a capacity for limiting this kind of administration-by-brute-force.<\/p>\n

Lastly, and relatedly, is the very question that Jackson emphasizes: weighing the harms that could occur while the litigation is pending. Unlike the property-line dispute, where most of the costs and benefits are borne by the two parties to the case, litigation challenging a major new administration program involve not just the specific harms borne by the challengers, but much more widespread, preexisting societal harms that the new policy is ostensibly created to remedy.<\/p>\n

It is easy for any of us to consider specific new harms alleged by a specific plaintiff; it is much harder for any of us to consider general preexisting harms spread broadly across large parts of society. Jackson suggests that trial judges are much better situated than appellate justices or Supreme Court justices to do so, given they are closer to the facts and can weigh \u201cthe credibility of witnesses and weighing disparate assertions.\u201d<\/p>\n

Surely those skills are useful for adjudicating a property-line case. But they\u2019re much less useful for adjudicating a preliminary injunction motion against a nationwide program on immigration, for example. Trying to balance, say, the harms faced by an individual family facing deportation, against the sum of all harms faced by border-town communities bearing the weight of the last two decades\u2019 immigration-policy chaos, would challenge the most Solomonic judges among us. The court\u2019s emergency docket cases involve the balancing of harms and equities that are often incommensurable, even unfathomable.<\/p>\n

As someone who personally opposes President Donald Trump\u2019s anti-immigrant tactics, it\u2019s easy for me to empathize with targets of his raids. But it would be silly for me to simply assume that there are no significant harms on the other side of the balance \u2013 much less that the Trump administration\u2019s claims of social harm, in cases like Noem v. Doe<\/em>, where the court lifted a lower-court stay of a major Trump Administration immigration policy revoking the categorical grant of parole to over half a million non-citizens from Cuba, Haiti, Nicaragua, and Venezuela, can simply be shrugged off as \u201cnext to nothing,\u201d as Jackson does in \u00a0\u00a0.<\/p>\n

What this means in practice, then, is that Jackson\u2019s suggested approach to emergency-docket petitions risks prioritizing the interests of those who go to court to block new government policies, not those countless non-litigants who stand to benefit from a given government policy. That may be a sensible balance to strike, but it\u2019s also ironic, because at Yale Jackson worried repeatedly about the risk of letting \u201ccertain privileged litigants\u201d leverage the judicial process to their own ends.<\/p>\n

Finally, Jackson\u2019s facts-first, laws-later approach seems an odd fit for the Supreme Court. Again, trial courts are built to adjudicate facts and equities. But the Supreme Court was created, first and foremost, for the sake of national uniformity in federal law. If there is one court that should put relatively more weight on legal questions than factual ones, even at the emergency-stay stage of a case, it\u2019s the Supreme Court.<\/p>\n

Too much of this was left out of Jackson\u2019s Yale remarks. But such considerations were front-and-center in Justice Samuel Alito\u2019s 2021 remarks at Notre Dame, and Justice Brett Kavanaugh\u2019s 2025 concurrence in .<\/p>\n

There, Kavanaugh put it well: \u201cthis Court should not insert itself into run-of-the-mill preliminary-injunction cases\u201d \u2013 say, a property-line dispute with a garden shed at stake<\/em> \u2013 \u201cwhere we are not likely to grant certiorari down the road,\u201d he wrote. \u201cBut determining the nationally uniform interim legal status for several years of, say, the Clean Power Plan or Title IX regulations or mifepristone rules is a role that the American people appropriately expect this Court\u2014and not only the courts of appeals or district courts\u2014to fulfill.\u201d<\/p>\n

Read more What oral argument reveals about Supreme Court unanimity and division<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Major Questions is a recurring series by Adam White, which analyzes the court\u2019s approach to administrative law, agencies, and the lower courts. Read more Daubert dust-up and AEDPA angst Good fences make good neighbors. But do bad neighbors make good analogies? Justice Ketanji Brown Jackson thinks so, but I\u2019m less convinced. Speaking at Yale Law […]<\/p>\n","protected":false},"author":1,"featured_media":38,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,14],"tags":[],"class_list":["post-39","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-commentary","category-major-questions"],"yoast_head":"\nA docket in the shadow of bigger problems - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=39\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A docket in the shadow of bigger problems - American Service Review\" \/>\n<meta property=\"og:description\" content=\"Major Questions is a recurring series by Adam White, which analyzes the court\u2019s approach to administrative law, agencies, and the lower courts. 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