Supreme Court Justices Ketanji Brown Jackson and Brett Kavanaugh squared off Monday night over the court's handling of its emergency docket, a rare public airing of tensions that usually stay behind closed doors. The exchange took place during an annual lecture honoring the late Judge Thomas Flannery of the U.S. District Court of Washington, D.C., with several federal judges, including Judge James Boasberg, looking on from the courtroom.
Jackson, a Biden appointee and perhaps the most vocal dissenter in emergency docket cases, signaled that the court's willingness to side with President Donald Trump on emergency matters was a "problem." Kavanaugh, a Trump appointee, pushed back, arguing the court's approach was nothing new.
The substance of the disagreement matters less than what it reveals: the left's growing frustration that the Supreme Court is functioning exactly as designed.
Jackson's argument boils down to pace. She aimed at the administration's use of executive orders and the court's willingness to rule on them quickly:
The administration is making new policy ... and then insisting the new policy take effect immediately, before the challenge is decided.
She went further, calling the increased activity on the emergency docket a disservice to the institution:
This uptick in the court's willingness to get involved in cases on the emergency docket is a real unfortunate problem.
And then the line that got the most attention:
This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.
It's a colorful metaphor. It's also wrong.
According to Fox News, the Trump administration has brought about 30 emergency applications to the Supreme Court and secured victories about 80% of the time. That's a high rate. But the court hasn't simply rubber-stamped every request that crossed its desk.
The justices required the administration to give more notice to alleged illegal immigrants being deported under the Alien Enemies Act. They agreed with a lower court that the president improperly federalized the National Guard as part of his immigration crackdown in Chicago. Those aren't the actions of a court where "this Administration always wins."
When Jackson claims there are no fixed rules except presidential victory, she is choosing to ignore the very cases where her side prevailed. That's not legal analysis. That's narrative construction.
Kavanaugh offered the kind of institutional perspective that doesn't generate viral quotes but has the advantage of being accurate. He noted that presidents "push the envelope" more with executive orders because Congress is passing less legislation. The observation is straightforward: when the legislative branch abdicates, the executive branch fills the vacuum, and the judicial branch gets pulled into the cleanup.
"Some are lawful, some are not."
That six-word sentence contains more intellectual honesty than Jackson's entire Calvinball riff. It acknowledges the court evaluates each case individually, which is precisely what a court should do.
He added simply that none of the justices enjoys the volume of emergency work. The emergency docket decisions have often broken 6-3 in favor of the president, but Kavanaugh's point stands: this pattern isn't unique to the Trump administration. The court handled the Biden administration the same way when it brought emergency requests.
What Jackson and her liberal colleagues are actually objecting to is not the process. Its outcomes.
Through the emergency docket, the Supreme Court has:
Every one of those outcomes represents the federal government exercising authority that a conservative majority found, at minimum, plausible enough to allow while litigation continues. That's what emergency orders do. They determine the status quo during the legal fight, not the outcome.
The Trump administration has faced hundreds of lawsuits. Many of those cases produced lower-court injunctions designed to freeze executive action indefinitely. The emergency docket exists precisely to prevent a single district judge from governing the country by injunction. When the Supreme Court steps in to lift or narrow those orders, it isn't "Calvinball." It's the appellate process working under pressure.
Jackson's framing conveniently skips a step. Before the administration ever reaches the Supreme Court's emergency docket, a federal judge somewhere has typically issued a sweeping nationwide injunction blocking executive action. These injunctions have become the left's weapon of choice: lose at the ballot box, then find a sympathetic judge to freeze the winner's agenda.
The court's willingness to curtail those injunctions isn't a symptom of institutional decay. It's a correction. One district judge should not have the power to override the policy preferences of a president who won a national election. The Supreme Court seems to agree, which is why the emergency docket has been so active.
If Jackson wants fewer emergency applications, the solution isn't to scold her colleagues in public. It's for lower courts to stop issuing maximalist injunctions that invite emergency review.
This isn't Jackson's first public broadside. In August, she lambasted the Supreme Court majority for "lawmaking" from the bench in a dissent tied to the NIH grants decision. She is one of three liberal justices on a court that tilts 6-3 conservative, and she has clearly decided that dissent alone isn't enough. She wants the public stage.
There's nothing inherently wrong with that. Justices have spoken publicly about the court's work before. But Jackson's rhetoric has a specific audience and a specific purpose. Phrases like "Calvinball jurisprudence" don't clarify legal doctrine. They hand ammunition to critics who want to delegitimize the court because they don't control it.
When the court sided with progressive causes, no one on the left complained about the emergency docket. No one called it lawless or rigged. The rules only become a problem when the outcomes change.
Kavanaugh understood the moment. Jackson performed for it.
