The Volokh Conspiracy
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How Long Did Justice Jackson's "Kafkaesque Nightmare" Dissent Hold Up Trump v. California?
In a future writing, I propose a mechanism whereby six Justices can force the release of any pending case.
On July 27, 2026, the Solicitor General submitted an emergency application in Trump v. California. This case concerns proposed regulations for mail-in ballots. The government filed its reply brief on August 12. After a flurry of litigation in the lower court, and new action by the government, the Supreme Court finally decided the case on August 24. This emergency case took nearly a month.
The majority opinion, at a brisk ten pages, finds the District Court lacked jurisdiction because the case was not yet ripe. Moreover, any alleged injuries were speculative under Clapper. The per curiam opinion reads a lot of Justice Kavanaugh's voice. I do like the word "concretize." Justice Kavanuagh has taken the lead in writing some of the Court's more significant jurisdictional cases. One would think that a former federal courts professor in the majority would get these cases, but apparently not.
Justice Sotomayor's pithy dissent covers all the bases in only four pages.
Then there is Justice Jackson. She wrote a solo twenty-page dissent that discusses the merits of the case, even though the majority only addressed the jurisdictional issues. She also warns that the Court's precedents are creating a "Kafkaesque nightmare." The only nightmare here is the fact that the Court let KBJ take nearly a month from the date of the application to write this dissent.
It seems that all of the Justices were ready to go shortly after the briefing concluded. But Jackson dragged out the process so long that the posture in the lower court changed. Some critics have faulted the Court for not addressing the recent developments. But how could they? Any change by the majority might trigger another two week delay from Justice Jackson.
Justice Jackson has proven that she sees no need for urgency when the Trump Administration submits an emergency application, especially when the case comes from the First Circuit. She slow-walked the petition in Libby v. Fectau. My nickname, the Laborious KBJ, still fits.
I will give you a preview of a future installment from my SCOTUSBlog series on Court Reform. I call it the "Release-6."
For any matter, six Justices can force the release of an opinion immediately. This rule would apply on both the merits and emergency dockets. The majority opinion could be published right away, with a notation that a dissent is forthcoming. A super-majority of the Court can bring a pending matter to an immediate conclusion. If a Justice wishes, he or she can publish the dissent at a later date, but the business of the Court will move forward.
There are some emergency matters where an immediate resolution is essential for the government or the private parties. It may also not be viable to keep an administrative stay in effect for an extended period of time. With the Release-6, six members of the Court can issue their judgment, and the dissent can come later, or not at all.
Trump v. California was a prime case. There were six clear votes to grant a stay, and a single dissenter held the matter up for weeks. Release-6. The Supreme Court forced out a ruling in A.A.R.P. v. Trump before Justices Alito and Thomas could write their dissent. Cooper v. Aaron was decided before Justice Frankfurter could finish his concurrence. In an emergency case, the Court can act before the separate writings are ready. Justice Jackson should receive the same treatment.
