Klobuchar: “The Court's increasing practice of using the shadow docket to decide cases that have grave consequences for our democracy, including the right to vote…is incredibly troubling”


WASHINGTON – Today, on the third day of the Senate Judiciary Committee’s hearing to consider the nomination of Judge Ketanji Brown Jackson to the Supreme Court, U.S. Senator Amy Klobuchar (D-MN) highlighted how the Supreme Court’s shadow docket decision today in a Wisconsin redistricting case illustrates the Court’s troubling practice of using the emergency docket to issue decisions affecting fundamental rights. 

Highlighting the Supreme Court’s decision today to strike down Wisconsin Supreme Court-approved redistricting plans, Klobuchar underscored how these ‘shadow docket’ decisions with important consequences can undermine public confidence in the Court. 

“This [decision] underscores the point that I made yesterday, that the Court's increasing practice of using the shadow docket to decide cases that have grave consequences for our democracy, including the right to vote, that you and many other nominees have said is fundamental, is incredibly troubling,” Klobuchar said. 

Klobuchar also questioned Judge Jackson on how thorough written decisions and public oral arguments can aid transparency and increase public confidence in the Court’s rulings. 

“I understand that there is a need to balance getting a full briefing with emergency circumstances, and the Court has long had in its procedures the ability to rule quickly on various cases,” Jackson responded. “But from my perspective as a judge in the work that I have been doing, I know that it is important to hear from the parties.”

An excerpted clip of Klobuchar and Jackson’s exchange on emergency dockets and maintaining public confidence in the Court is available for TV download HERE and online viewing HERE

The full transcript of Klobuchar’s questioning as given is below. 

Sen. Klobuchar: Thank you very much, Chairman Durbin. Welcome back, Judge Jackson. Yesterday, you and I discussed the Court’s increasing reliance on issuing orders on its shadow docket. And less than an hour ago, the Court once again used a shadow docket to throw out Wisconsin's redistricting maps. And because this decision just came out, I do not expect you to have immediately reviewed it, but I just want to make this point, that in her defense, Justice Sotomayor, joined by Justice Kagan, called the Court’s move unprecedented. She noted that, in an emergency posture, the Court summarily overturned a Wisconsin Supreme Court decision resolving a conflict over the state's redistricting, decision that was rendered after a five-month process involving all interested stakeholders, a based on an obligation that is, in her words, “hazy at best”, even though summary reversals are generally reserved for decisions in violation of settled law. And again, I do not expect you to be familiar with this case, but I do want to point out that this underscores the point that I made yesterday, that the Court's increasing practice of using the shadow docket to decide cases that have grave consequences for our democracy, including the right to vote, that you and many other nominees have said is fundamental, is incredibly troubling. You had in the other case I mentioned yesterday where Justice Roberts dissented, the Texas abortion bounty hunter case, that that should not have been done on the shadow docket. While I am not going to ask about this because you could not have possibly read it, does your record of writing decisions that are thorough and listening to litigants in cases, could you just generally talk about the importance of having full briefings on the merits, as well as public oral arguments, if you believe in transparency?

Judge Jackson: Thank you, Senator. As a judge in my work over the last decade, I have seen that it is very important, at least to me in my time as a judge to date, to hear arguments from all sides in a case. The duty of a judge is to make determinations and under our system of adversarial proceedings, you make determinations based on arguments. And it is important to do so. I know that with respect to the emergency docket, you have not asked me the question about it, but because I would say what I said before, which is I would benefit from being able to speak with the justices. I understand that there is a need to balance  getting a full briefing with emergency circumstances, and the Court has long had in its procedures the ability to rule quickly on various cases. It is also my understanding from my time clerking on the Court that the Court does recognize the value of allowing things to what we call percolate, meaning lower courts to hear issues, and my understanding is that, at least in some recent cases, justices have had oral argument related to some emergency matters. But from my perspective as a judge in the work that I have been doing, I know that it is important to hear from the parties.

Sen. Klobuchar: Another hallmark of your work has been taking complex issues and making them accessible to the public, so much so that I actually referred to one of your opinions from a debate stage in Los Angeles, saying, as a wise judge said, those were my words, guess I was ahead of my time, “the president is not king in America, the law is king.” I paraphrased it. That was a written opinion you wrote that was over 65 pages long, relied extensively on Supreme Court precedent, the Committee on the Judiciary v. McGahn, and can you talk about really two things, the importance of having the law written in terms that are easy to understand by people, and then secondly, your opinion was actually a narrow one. It required Mr. McGahn to appear to testify but said he remained free to exert any legally applicable privilege in response to the questions asked. So what you did there was a narrow opinion. What role do you think narrow rulings played in helping to maintain the legitimacy of the Court? Why is it important to have plain language in orders? 

Judge Jackson: Thank you, Senator. I will start with the second first. I think that, you know, as we have been discussing, we have a rule of law in this country which requires a certain amount of predictability and stability in the law. If there are big shifts in terms of legal principles and doctrines and whatnot, it could lead to people not understanding that judges are ruling on legal principles. It could lead to undermining public confidence, thinking that judges are injecting their own policy preferences, rather than following the law in terms of their rulings. So to further predictability, stability, there are many doctrines in judicial practice, there is Stare Decisis, whis is the principle that if something has already been decided very similarly, you at least -- it may be binding on you if you are a lower court, but at least you have to contend with it, because that is the law that existed before you got the case and you do not want to make a big shift. And then there  is also the principle that , the understanding that when you are announcing rulings, you are building on what exists before. And so you do not want to make a big shift if you do not have to because if you can find a way to rule incrementally in a more narrow way, it keeps the law stable, as a part of the proposition that I mentioned before. In McGahn, in particular, it was a case in which there was a precedent directly on point from my district, it was not binding on me, but the exact same set of circumstances and arguments had been presented to another judge in my district, I believe it was something like 10 years prior to my case, and so we had law that governed the circumstance, and I looked at that and determined it was persuasive and that I should continue the principles that had been laid down in the prior case. Also, in accordance with those principles, the prior judge and I made the determination that when the president claims absolute immunity, the argument was that the person who had been subpoenaed by the legislature, a former employee of the White House, could say that they had immunity of some sort. In other words, it could invoke executive privilege in response to particular questions, but they couldn’t say I don’t have to show up at all. So the argument that was being made was when the House of Representatives issues a subpoena and say:  show up on this day at this time to answer questions, does that person -- can that person just ignore and say I have immunity and do not have to follow the law, in other words, respond to this subpoena, or do I have to show up and sit there and listen to the questions, and if there are things that I believe I cannot answer because they are privilege, then you invoke the privilege? The prior case had said in this narrow way: you have to show up. You do not necessarily have to give the information. That is determined on a question by question basis, but you have to show up. And that is what I held through that case, as well, and it is important to be clear in your rulings so that people understand that judges are ruling consistent with the law and not their own personal views.

Sen. Klobuchar: Right, and speaking of being clear and being careful in your rulings, some of my colleagues have, I think, given not a necessarily true view of your whole record. Because when it comes to your rulings being upheld, the numbers show that out of over 550 cases, your District Court cases, you were reversed less than 3% of the time. And in some of the instances, you were reversed only to have your decision later upheld. I noticed one case, Territory of Guam v. United States, in which you were initially reversed but then a unanimous Supreme Court reversed that decision, then siding with you, and in an opinion written by Justice Thomas and aligned with your view. Do you want to quickly talk about that case?

Judge Jackson: Well, that case is kind of legally complicated. It was a CERCLA Case, which is a superfund cleanup kind of case, where the country of Guam, which has a dump site on it that was used by both the citizens of Guam and the United States before the 1950's, when the United States was stationed there, military operations happened out of Guam, and there was a lot of jumping into this site. And over time, the site got contaminated, and Guam was charged with having to clean it up, which is millions and millions of dollars. And there are statutes, very complicated statutes, about the circumstances under which you can seek contribution, under which a country like that can ask for the United States to pay some of that cost or other countries to pay some of that cost. And that was sort of the nature of the dispute, and I did a statutory interpretation about whether or not Guam's action could proceed. The United States filed a motion to dismiss, saying that all of the technical requirements of the law weren’t met and that the action had to be dismissed, and I denied the motion to dismiss after interpreting the statute, saying that the action could continue. The D.C. Circuit reversed my view, had a different reading of the statute, saying that the motion to dismiss should have been granted and dismissed the case. And then it was appealed to the Supreme Court, and as you say, the Supreme Court reinstated the action, saying it could proceed.

Sen. Klobuchar: Very good, thank you. In 1972, in Branzburg v. Hayes, a 5-4 Court did not recognize a reporter's privilege in the context of criminal grand jury testimony. I spoke with you earlier at length about Times v. Sullivan and First Amendment issues, so this will be my last question on this. Since the Court's decision, my state, like many other states, enacted strong reporters’ privilege laws to protect journalists from having to divulge unpublished materials, confidential sources. How would you approach balancing the need to protect journalists and the role they play in informing the public against the need for law enforcement officers to gather information?

Judge Jackson: I would apply the precedents of the Supreme Court in this area. It would depend on the circumstances. As I mentioned, press freedoms is one of the fundamental First Amendment rights. The Court has a number of precedents in terms of expressive freedom, press freedom. And in every case, there will be a specific set of circumstances regarding an alleged violation of the right, and the Court would need to look at the facts and circumstances, the prior precedent, in order to determine whether that particular regulation could be upheld.

Sen. Klobuchar: Okay, thank you. This is my very last question before all of us get to eat lunch, including you. And that is really the important role of dissenting opinions. Justice Ginsburg once said this, she said: “dissent speaks to a future age. It’s not simply to say my colleagues are wrong and I would do it this way, but the greatest dissents do become Court opinions, and gradually over time, their views sometimes become the dominant view.” When Justice Ginsburg's rabbi gave a eulogy at her memorial service here in the Capitol, some of us were fortunate enough to be there, he said:  “Justice Ginsburg's dissents were not cries of defeat, they were blueprints for the future.” What do you think is the purpose of a dissent, and do you want to talk a little bit about that? This idea that they could be blueprints for the future.

Judge Jackson: Thank you, Senator. On the Supreme Court, there are nine justices, and in every case, they are all sitting together to hear the issues in a case. And one hopes, and it often happens that the justices agree as to issues in the cases. And I believe that the vast majority of cases that the justices hear are actually not -- there is no dissent, that they agree to the outcome. But there are cases in which, after deliberation and collaboration and consideration, the justices may disagree about how the case should be resolved, and there is a mechanism for every justice to decide whether they are going to join others, either in the majority, whether they are going to write a separate opinion that might agree with the majority but wants to make a different point, or whether they want to dissent. And sometimes more than one justice might dissent or join a dissent. It is a way of expressing one's own view that may differ from your colleagues. And with respect to the point that you made, there are actually many justices in history who have used the dissent mechanism to discuss the law in ways that others find, over time, to be more persuasive. And so I am thinking of the first Justice Harlan who dissented famously in Plessy v. Ferguson, he dissented alone. All of the other justices agreed with the proposition of separate but equal, and he said no in a dissent. And his dissent, generations later, became, according to Justice Thurgood Marshall, became the blueprint for Justice Marshall to make arguments that led to Brown v. The Board. So there is the opportunity for justices to describe their views in ways that become persuasive to others in the future.

Sen. Klobuchar: Thank you for all you have given us the last few days. We look forward to working with you. Thank you.