On Monday evening, Justices Kavanaugh and Jackson appeared at a joint event at the D.C. Circuit. Several press outlets reported on what was described as a "polite but forceful back-and-forth" concerning the emergency docket. Here is the summary from the New York Times:
Justice Kavanaugh told those gathered that he thought the justices were being asked more frequently to weigh in on presidential actions because gridlock in Congress has led presidents to do more through executive orders, which have then been challenged in court. It is an argument he has made previously from the bench and in public appearances.
He added that such emergency requests are "not a new phenomenon" and had been on the rise during the Biden administration as well. He pointed to an emergency request by the Biden administration to keep in place access to a widely available abortion drug, mifepristone, as a lower court heard a challenge to the drug's approval.
Justice Jackson, however, pushed back and suggested the court's actions under Mr. Trump represented a departure.
Previously, she argued, the court had used emergency orders largely to maintain the status quo. Yet in the Trump administration, she said the court was signing off on new policies. In the mifepristone example, she said, the drug had already been in use for decades, and the Biden administration wanted to maintain access, not seek a new policy or change.
By agreeing to take on such emergency applications, she said the justices had signaled a willingness to hear the cases before they had worked their way through the lower courts, creating "a warped" kind of proceeding and "a real unfortunate problem."
"I think it is not serving the court or our country well at this point," Justice Jackson said, to applause from many in the audience.
Not quite. The Plaintiffs in Alliance for Hippocratic Medicine v. FDA challenged a series of actions concerning mifepristone between 2000 and 2021. The District Court found that all of those actions could be challenged within the statute of limitations. But the Fifth Circuit found that only actions taken in 2016 and 2021 were subject to challenge. So there was an Obama-era policy at issue, and another Biden-era policy. Let's quote from the summary of the facts from Justice Kavanaugh's majority opinion:
