Judge Presses Jackson on ‘Mystifying’ Emergency Docket Orders

A federal judge pressed Justice Ketanji Brown Jackson on how lower courts are supposed to interpret the Supreme Court’s increasingly common and often unexplained emergency orders.

Judge Richard Gergel, who was appointed to the US District Court for the District of South Carolina by Barack Obama, vented his frustration to Jackson during an appearance Monday before the American Law Institute at the Ritz-Carlton in Washington.

“I can find, as a district judge, it mystifying at times where an emergency docket position of maybe just two or three pages appears to countermand longstanding Supreme Court precedent,” Gergel said. “Are we to apply the brief, short stay decision or denial of stay or are we to follow 50 years of precedent?”

It was a “legitimate question,” Jackson said, pointing the audience to a recent talk she gave at Yale Law School critiquing the court’s handling of its emergency docket as sometimes “utterly irrational.”

The comments by Gergel, a 15-year veteran of the bench who presided over the murder trial of Dylann Roof, came during a period of heightened tension among the justices and lower courts as the Supreme Court has repeatedly stepped in to grant emergency relief—often at the behest of the Trump administration.

In August, Justice Neil Gorsuch took the unusual step of admonishing judges in a concurring opinion not to “defy” precedent from the court’s emergency docket decisions. Such decisions are typically unsigned and often containing little or no reasoning, and Gorsuch’s rebuke received pushback from judges around the country.

Jackson, who has emerged as one of the court’s most vocal emergency docket critics, also fielded a question Monday about whether the court discarded a principle about not interfering close to elections with its recent decision to expedite its judgment in a Louisiana redistricting case.

Jackson, who publicly dissented from that decision, said moves that could appear politically motivated risked undermining the court.

“We know that public confidence is really all the judiciary has,” Jackson said.