Justice Jackson goes ‘her own way’ in Supreme Court’s SNAP fight

By John Fritze, CNN

(CNN) — As she oversaw President Donald Trump’s emergency Supplemental Nutrition Assistance Program, or SNAP, case this past week, Justice Ketanji Brown Jackson once again proved she isn’t beholden to Supreme Court custom.

The least senior justice, who has been the court’s most consistent critic of the second Trump administration, appeared to be sending signals not only about the technicalities of the SNAP case but also more subtle messages about the way the court has handled a litany of short-fuse appeals on its emergency docket this year dealing with presidential power.

She did all that, oddly enough, by siding with Trump.

“She’s modeling the way that the emergency docket should be used,” said Elizabeth Wydra, the president of the liberal Constitutional Accountability Center.

Since joining the court three years ago, Jackson has drawn attention for a sharp pen. That has been particularly notable in a series of cutting dissents she has written this year calling out the Trump administration for what she has framed as “lawlessness.” And she has not spared her colleagues for acquiescing to the White House in some of those decisions.

“This is Calvinball jurisprudence with a twist,” Jackson wrote in August when the court allowed the Trump administration to halt about $800 million in research grants. “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this administration always wins.”

That pointed prose and her unflinching willingness to criticize her colleagues has made Jackson, who was nominated to the bench by former President Joe Biden, a divisive figure.

“Even before the SNAP case, Justice Jackson had already emerged as the most vocal, most frequent, and sharpest critic of the majority’s inconsistent, difficult-to-justify, and often unjustified behavior in Trump-related cases,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

Her machinations in the case, Vladeck said, underscored “a justice who is using every possible strategic and tactical maneuver behind the scenes to try to push the court toward what she believes the right answer is, but who is unafraid of sending increasingly loud public signals when those efforts are, as they so often have been this year, ultimately for naught.”

The appeal on funding for SNAP emerged as the highest-profile legal case of the government shutdown. A lower court ordered the US Department of Agriculture to transfer $4 billion from another fund to pay full SNAP benefits for November – an order that the administration appealed as an overreach of judicial power.

With a midnight deadline approaching – and benefits for more than 40 million Americans hanging in the balance – the case landed in a rush at the Supreme Court on a Friday evening. Trump wanted the justices to temporarily block the lower court order, known as a “stay.”

Because she handles emergency appeals from the Boston-based 1st US Circuit Court of Appeals, the case went to Jackson. The “circuit justice” generally plays a straightforward role, setting a briefing schedule and – in big cases – ultimately referring the matter to the full court.

But as he has raced up to the Supreme Court this year in case after case, Trump has been asking for something else as well: An even shorter-term order known as an “administrative stay,” which freezes the lower court decision while the justices review the written arguments in the case.

That administrative decision, usually, rests with the assigned justice – in this case, Jackson.

A former trial court judge who recently took up boxing as a way to relieve stress, Jackson ultimately granted Trump’s request, a move that initially raised anxiety among liberals and cheers from conservatives on social media. But Jackson also took several steps that were a departure from how other justices have handled administrative stays.

First, Jackson included a few paragraphs of written explanation in her order, breaking from the boilerplate-only language usually found in administrative stays. She wrote that she was granting Trump’s request “to facilitate” the appeals court’s “expeditious resolution” of the appeal.

The Supreme Court has faced enormous criticism this year for regularly overturning lower court orders on its emergency docket without explanation. While there are sometimes good reasons for brevity in those cases, some justices – such as Justice Elena Kagan – have said the court could provide a little more explanation.

Second, rather than leaving the timing open-ended, Jackson set her administrative order to lift 48 hours after the appeals court ruled.

Jackson likely understood – or at least assumed – there would be a majority to grant Trump’s request if she didn’t do so. By granting it herself but limiting the timeline, rather than sending it to the full court, she had the effect of bringing the case back to her chambers for a second look in an unusually short order, Vladeck wrote in widely circulated post over the weekend.

Wydra said Jackson handled the case as should be done on the emergency docket. Justices, she said, should deal with the requests “quickly, as transparently as possible, and for logistical reasons, not…make what amount to significant substantive decisions.”

Josh Blackman, a professor at the South Texas College of Law Houston who also wrote about Jackson’s maneuvers, agreed that she appeared to be going “her own way.”

“She has a clear vision of how she wants the shadow docket to be run,” Blackman said.

But, he suggested, it ultimately didn’t work. In the end, as Congress drew closer to an agreement to fund the government, the full court extended her administrative stay for a few days without writing to explain why. Jackson wound up in dissent, which she also registered without explanation. And the Trump administration ultimately got what it wanted.

Trump signed the spending measure late Wednesday, reopening the federal government and funding the food program. Hours later, the Department of Justice sent a letter to the Supreme Court noting that it was abandoning its appeal – an anticlimactic end to a case that had significant real-world consequences.

On Thursday, as the court announced it was reopening its doors to the public, a single line was added to the docket in the SNAP appeal: “Application withdrawn.”

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