How Quickly Should A Justice Call For A Response On The Emergency Docket?

Yesterday, I wrote about Libby v. Fectau. In this case, the Maine Speaker of the House stripped a member of her right to vote–and ability to represent her constituents. Libby filed an emergency application on Monday, April 28 with Justice Jackson. The application explained that the Maine legislative session begins on May 6. Unless a stay is granted, votes will be held, but Libby will be unable to vote. That danger is completely irreparable. Abrego Garcia may one day be brought back to the United States. Probationary employees can be rehired. Cancelled funds can later be disbursed. But the Maine legislature will not hold a “do-over” vote. Even if the Court is not inclined to grant relief, one would think that the Circuit Justice should at least have the case fully briefed to permit a prompt resolution of the case. But Justice Jackson had other plans.

Today, May 1, three days after the application was filed, Justice Jackson called for a response. And she gave the respondents a full week to reply. She set the deadline for May 8–two days after the Maine legislative session begins. Even assuming the full Court promptly rules on the matter, there will be injuries that cannot be remedied.

Justice Jackson has been very critical of the shadow docket rulings. She referred to standing as a “shiny” object, and referred to the United States as just another party. On the full court, she has but one vote. But as Circuit Justice, she has the only vote. I wonder if Justice Jackson is putting her views on the shadow docket into play. In other words, she can call for a response when she finds it appropriate to do so, and will not follow the deadline requested by the Applicants. In doing so, she can frustrate the ability of the full Court to grant emergency relief.

I checked the high-profile shadow docket entries over the past few months to see how much time elapsed before there was a call for response, and how long the deadline was. I’ve also noted in parentheses the total time that elapsed from the application until the reply was filed. Here is the set (and please email me if I made any errors):

1. Libby v. Fectau – Application filed on 4/28, J. Jackson calls for response on 5/1, due 5/8 (11 days)
2. Department of State v. AIDS Vaccine Advocacy Coalition – Application filed 2/26, CJ Roberts calls for response on 2/26, due 2/28 (3 days)
3. Bessent v. Dellinger – Application filed 2/16, CJ Roberts calls for response on 2/18, due 2/19 (3 days)
4. Department of Education v. California – Application filed 3/26, J. Jackson calls for response on 3/26, due 3/28 (3 days)
5. Trump v. J.G.G. – Application filed on 3/28, CJ Roberts calls for response on 3/28, due 4/1 (5 days)
6. OPM v. AFGE – Application filed on 3/24/25, J. Kagan calls for response on 3/27/25, due 4/3/25 (11 days)
7. Noem v. Garcia – Application filed on 4/7/25, CJ Roberts calls for response on 4/7/25, due 4/8/25 (2 days)
8. Trump v. CASA – Application filed on 3/13/25, CJ Roberts calls for response on 3/14/25, due 4/4/25 (Oral Argument set for 5/15/25)
9. Trump v. Wilcox – Application filed on 4/9/25, CJ Roberts calls for response on 4/9/25, due on 4/15/25 (7 days)
10. A.A.R.P. v. Trump – Application filed on 4/18/25, stay granted on 4/18/25, response filed on 4/19/25 (1 day)
11. U.S. v. Shilling – Application filed on 4/25/25, J. Kagan called for response on 4/24/25, due on 5/1/25 (7 days)

Chief Justice Roberts consistently calls for a response when the application is filed, or the next day. With the exception of the birthright citizenship case, which was set for oral argument, Roberts has set the deadline as long as six days, usually three days, and sometimes even shorter. (In A.A.R.P., the deadline came after the Court’s stay.)  In two cases, Justice Kagan granted a full week. Justice Jackson has now granted a week in one case, and two days in another.

I’m not sure if we have enough data points to figure out a pattern here. But at a minimum, Justice Jackson has signaled that she will move at her own pace, and not the schedule requested by the applicant.

What, then, is a litigant to do if a Circuit Justice does not timely call for a response? Could they seek relief from another Circuit Justice? Or ask the application to be referred to the full Court? Or maybe they can direct the application to the full court in the first instance, and bypass the Circuit Justice? I have a sinking feeling that in A.A.R.P., even though the case was nominally referred to Circuit Justice Alito, the case was decided in the first instance by the full Court. There simply was not enough time for all of the steps to have taken place on Good Friday.

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