Supreme Court nominee Jackson says she would recuse herself from Harvard affirmative action case

Sen. Amy Klobuchar (D-Minn.) Asked Jackson what she thought of the shadow filings, hours after the Supreme Court Wednesday morning used the shadow filing to overturn a Wisconsin Supreme Court ruling on the maps of redistricting.

“Because this decision was just made, I don’t expect you to immediately review it,” Klobuchar told Jackson. “But I just want to point out that in her dissent, Judge [Sonia] Sotomayor, joined by Justice [Elena] Kagan, called the court’s decision unprecedented.

A phantom case is when the court issues an emergency order or summary decision without argument.

In his dissent, Sotomayor noted that the court in this emergency motion reverses the state Supreme Court’s decision in a way that is generally reserved for violations of established law.

Klobuchar said the court’s growing practice of using a parallel roll to decide cases that have “serious implications for our democracy” — including the right to vote — “is incredibly troubling.”

Jackson said she needed to talk to the judges first to better understand their use of the shadow case, but drawing on her experience as a clerk, she said she knew it was “necessary to balance obtaining a full briefing” in the event of an emergency.

Jackson said the court recognizes the value of allowing “lower courts to hear questions” and that “at least in some of the recent cases the judges have had oral arguments on certain matters of urgency.”

“But from my perspective as a judge in the work that I’ve done, I know it’s important to hear from the parties,” Jackson said.

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