In a scathing dissent, Jackson voiced her disapproval of the court’s Monday decision to strike down U.S. District Court Judge James Boasberg’s injunction pausing deportations under the AEA, which was used last month to expedite the deportation of more than 100 alleged gang members to a prison in El Salvador notorious for human rights abuses.
The court’s newest justice also took issue with how her colleagues had ruled on the issue, as part of the bench’s emergency, or shadow, docket, which sees immediate action on issues ranging from scheduling proceedings to requests to halt lower court rulings—like the government’s request to halt Boasberg’s injunction.
“At least when the Court went off base in the past, it left a record so posterity could see how it went wrong,” she wrote. Jackson then cited Korematsu v. United States, in which the Supreme Court had ruled that the government was right to order the incarceration of Japanese-American citizens during World War II. President Franklin Roosevelt had used the Alien Enemies Act to justify the brutality of Japanese internment.
Jackson argued that the court hadn’t learned anything.
In recent years, justices have begun to issue far more significant rulings through the shadow docket, according to the Brennan Center for Justice. Unlike the 60 or 70 merit docket cases that the justices decide each term, shadow docket cases do not receive extensive briefings or hearings, and their decisions are accompanied by scant explanations.
“But this Court now sees fit to intervene,” she said, “hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.”
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