Recently, Judge James Boasberg issued an emergency order. He launched a contempt investigation that lasted twelve months and continued it even after the Supreme Court ruled that his orders had overstepped.
He has accused the administration of acting in bad faith, and he ordered deported migrants back to the United States at taxpayer expense. The DC Circuit called his contempt proceedings "a clear abuse of discretion."
This is just one judge who has proven to be more activist than jurist, as I could give you a dozen examples. The administration has had no choice but to file emergency application petitions with the Supreme Court to rectify these cases. Yet, Justice Ketanji Brown Jackson chastised the court for abusing the emergency docket. She got the abuse part right, but she is blaming the wrong people.
The Supreme Court’s emergency docket, often referred to as the shadow docket, is the process of filing an application to seek immediate action by the court.
The cases are expedited before the court, usually with no oral arguments and often with little or no explanation by the court. They are often unsigned rulings; however, there are sometimes dissents, such as we have seen with the recent flow of emergency orders submitted by the Trump administration.
Historically, this has been used for death penalty cases, not policy battles, but Democrats have and continue to force the hand of this administration. This has clearly irked the liberal side of the bench.
For instance, on the use of the emergency docket, CNN reported Justice Elena Kagan as having stated:
“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation's separation of powers.”
These justices are only looking at what is before them rather than the root of the problem, that being their fellow judges in the lower courts.
If we look at past administrations, we have never seen so many executive orders challenged during the course of a presidency. For instance, Donald Trump’s first term had more legal challenges than the Bush, Obama, and Biden presidencies combined.
The nature of the orders being issued by Trump often requires an immediate ruling one way or the other, so the administration has been forced to push these cases through to the Supreme Court to ask for relief.
As you can see in the table below, there has not been a president in modern history who has had to defend his executive-order powers like Trump. This has actually forced a tit-for-tat pattern, as Biden had more challenges to his orders than the Bush and Obama administrations combined.
| Administration | Executive Orders | EOs Per Year | Notable Court Challenges | Emergency SCOTUS Applications |
|---|---|---|---|---|
| Bill Clinton (1993–2001) | 364 | 45.5 | EO 12954 overturned (federal appeals court, 1995). Routine challenge volume. | * |
| George W. Bush (2001–2009) | 291 | 36.4 | EO 13233 (presidential records) was challenged and later revoked by Obama. Limited court intervention. | 4 |
| Barack Obama (2009–2017) | 276 | 34.5 | Immigration EO blocked (2014). ACA challenge (House lawsuit, 2014). Moderate challenge volume. | 4 |
| Donald Trump, 1st Term (2017–2021) | 220 | 55 | Travel ban stayed (Jan 2017). Sanctuary city order blocked. 28.1% of major rules challenged; 57.1% of those challenges succeeded. | 41 |
| Joe Biden (2021–2025) | 162 | 40.5 | Student loan forgiveness blocked. Vaccine mandates partially blocked. Reversed 62 Trump EOs in first 100 days. | 19 |
| Donald Trump, 2nd Term (2025–Present) | 254+ | 203+ | 130+ lawsuits. 40+ adverse rulings. Birthright EO alone faced 6 lawsuits. F-1 visa case: 100+ lawsuits, 50+ TROs. Nationwide injunctions were issued in dozens of cases. | 33+ |
| Sources: Federal Register, Pew Research Center, Brennan Center for Justice, K&L Gates, SCOTUSblog, Stephen Vladeck, Just Security Litigation Tracker, Britannica. *Clinton-era emergency application data predates modern Brennan Center tracking (begins 2001). Trump 2nd term EO count per Federal Register (254 through early 2026); Pew reported 221 through Dec. 15, 2025. "EOs Per Year" for Trump 2nd term based on ~15 months in office. | ||||
What is extremely important to note is that up until Trump’s current administration, these presidencies were all in the same ballpark in regard to the number of executive orders that were being issued per year.
Granted, during Trump’s second term, the pen that signed these orders was set on fire, but many of these orders were to reverse the orders that had been issued by Biden that were deemed harmful to the country by this administration (many of Biden’s orders were to reverse policies put in place during Trump’s first term).
During Trump’s second term, more than 130 lawsuits have been filed to block orders put in play by this administration. Dozens of these orders have been halted in the lower courts, often by nationwide injunction.
The lower courts have continued to issue nationwide injunctions, even though in Trump v CASA, Inc., the court had ruled that the lower courts were overstepping their bounds by issuing these injunctions.
The majority decision, according to an Al Jazeera report, stated:
“Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions.”
The court added that the decision applied “only to the extent that the injunctions are broader than necessary.”
After the ruling was announced, then-Attorney General Pam Bondi celebrated, stating:
“Today, the Supreme Court instructed district courts to STOP the endless barrage of nationwide injunctions against President Trump.”
President Trump was also ecstatic over the win, posting to Truth Social:
“GIANT WIN in the United States Supreme Court!”
Their joy would be short-lived, however, as lower-court judges, such as Judge Boasberg, continued to block the administration and continued to issue nationwide injunctions.
Boasberg is regularly touted as an Obama judge, but that is not necessarily true. Obama did elevate Boasberg to the DC Circuit in 2011, but it was President George W. Bush who first placed Boasberg on the bench in 2002.
Boasberg was on the bench for the J.G.G. v. Trump case, more commonly known as the Alien Enemies Act case.
The administration had deported what it deemed to be the worst of the worst to Venezuela, which was challenged in court. Even though the migrants were already in the process of being deported, Boasberg issued a TRO barring the deportation.
ABC News reported that the Trump administration had ignored the order and flown two planes of migrants out after the order had been issued, refusing to turn the planes around.
This started a legal back-and-forth between the administration and Boasberg, as criminal contempt proceedings were ordered, while Trump demanded Boasberg be impeached (a call rejected by Chief Justice John Roberts).
The critical blow to Boasberg’s credibility in this case occurred in April 2025, when NBC News reported that the Supreme Court ruled that nationwide injunctions like the one Boasberg issued exceeded the equitable authority of the lower courts. To add insult to injury, Boasberg’s order was vacated by a three-judge panel in August.
This week, Courthouse News reported that Boasberg was dealt yet another major blow when the DC Circuit Court ruled 2-1 that he had "abused his discretion" in pursuing contempt proceedings. Furthermore, it ruled that his investigation into the administration was "intrusive" and a "clear abuse of discretion."
The DOJ has filed a misconduct complaint against Boasberg, with Acting Attorney General Todd Blanche adding:
"Today's decision by the DC Circuit should finally end Judge Boasberg's year-long campaign against the hardworking Department attorneys doing their jobs fighting illegal immigration."
It is quite easy to make the argument that Boasberg is an activist, but when we start to look at the comments made by Justice Jackson, she appears to be reading from the same playbook.
Jackson has issued some scathing responses during her brief time on the bench, but one of her most controversial was stated during the TPS/Venezuela case in October 2025.
Justice Jackson, according to a Newsweek report, blasted the court for its ruling, having stated:
"I view today's decision as yet another grave misuse of our emergency docket. This Court should have stayed its hand. Having opted instead to join the fray, the Court plainly misjudges the irreparable harm and balance-of-the-equities factors by privileging the bald assertion of unconstrained executive power over countless families' pleas for the stability our Government has promised them."
Nobody should have been surprised when Jackson turned up her rhetoric in dissents, as she had made it clear that was her intent only months earlier in July 2025 during the Essence Festival of Culture in New Orleans. She told the crowd:
“I just feel that I have a wonderful opportunity to tell people in my opinions how I feel about the issues, and that's what I try to do.”
The Supreme Court is not about feelings. It is about interpreting the law and the Constitution and applying that interpretation to the case at hand. When I heard those words come out of her mouth, I immediately thought a case could be made for impeachment. I would love to hear more about this from someone like Jonathan Turley, one of the few constitutional experts I respect.
Those are the words of an activist, not a United States Supreme Court justice.
The Brennan Center, a liberal-leaning think tank, has accused the conservative majority of the court of "using the shadow docket to quickly and dramatically expand executive power."
That statement is both biased and false.
This shadow docket is being used due to the sheer volume of challenges to policy. This is not a sport for the administration, quite the opposite. It is tedious, time-consuming, and expensive, but it is also necessary because of the sheer number of challenges this administration has faced when issuing an executive order.
Jackson and the other liberal justices who are pointing the finger at the administration and conservative justices are pointing in the wrong direction. Proof of that is the shocking number of lower court rulings that have been overturned, and not just by the Supreme Court.
Many of these rulings are not surviving the initial challenge at the appellate level. And when you have decisions by the same judge being repeatedly overturned on appeal, that is an activist, not a jurist.
So, Justice Jackson, perhaps you should look in the mirror before spitting venom, as you have proven to be no better than Boasberg and the other activist judges overstepping their judicial authority solely to stop a president with whom you do not agree and do not like.
