A midnight court order halted a deportation flight. Now the Supreme Court must decide whether to restart the program.

Just before midnight Wednesday, a ruling by the U.S. Court of Appeals for the 1st Circuit landed in the inboxes of Homeland Security lawyers and forced the cancellation of a deportation flight carrying 70 people bound for three countries. By Thursday afternoon, the Trump administration had its answer ready: an emergency petition to the Supreme Court, asking the justices to set the circuit court aside and let the program run again.

The filing put a new, live test case squarely in front of the court's shadow docket. It arrived less than 24 hours before Justice Ketanji Brown Jackson stood at the University of the District of Columbia David A. Clarke School of Law and told an audience that the court's emergency procedures have become a "real unfortunate problem."

What the administration is asking

The Trump administration asked the Supreme Court on Thursday to again clear the way for continued quick deportations of immigrants to third countries where they have no ties. In an emergency filing, the administration asked the justices to put on hold Boston-based U.S. District Judge Brian Murphy's ruling that the Department of Homeland Security's policy to remove migrants to so-called third countries is unlawful, while it appeals to the Supreme Court.

The dispute escalated quickly after the Boston-based 1st U.S. Circuit Court of Appeals, which upheld Murphy's decision on September 18, put that decision into effect late Wednesday. The administration said that ruling came just minutes before midnight, forcing the cancellation of a flight with 70 people that was headed to three countries.

More than 25,000 migrants have been deported to 29 countries under the policy implemented last year, according to a tally by human rights groups, with the vast majority going to Mexico. The policy is central to the administration's immigration crackdown. Many of the migrants in question had already been granted some form of legal protection against removal to their home countries, meaning the U.S. needed a third destination willing to take them.

The appeal comes after lower courts found that people must have the chance to object before the U.S. government deports them to countries other than their homelands. The justices previously allowed the deportation flights to temporarily continue when the case came before them last year. Since then, an appeals court upheld a Boston-based judge's final ruling that migrants must have a meaningful chance to argue a third-country deportation would put them in danger of persecution or torture.

The administration said in its filing that the third-country process is critical to removing migrants who commit crimes because their countries of origin are often unwilling to take them back. The administration said Murphy's injunction is preventing potentially thousands of pending deportations and that it "disrupts sensitive diplomatic, foreign policy and national security efforts."

The shadow docket argument arrives in D.C.

The emergency petition landed the same week Justice Jackson chose to speak publicly about exactly this kind of procedural move. Her venue was not accidental. The University of the District of Columbia, a historically Black public law school a few miles from the Supreme Court building, gave her remarks a weight separate from the usual judicial conference circuit.

Speaking to an audience at the University of the District of Columbia's law school on Thursday night, Jackson said the nation's highest court has used the emergency docket, where rulings are made quickly and often without oral arguments or explanation, too often. Jackson, a liberal justice nominated by former President Joe Biden, said the Supreme Court will become more distrusted if it keeps ruling on cases without a full hearing, especially in cases that could harm the general public.

Jackson said the Supreme Court's recent approach to its emergency docket has had a corrosive effect on litigation practices and strained the court's relationship with lower courts. Previous iterations of the court were slower to act on emergency petitions and expected more from plaintiffs, Jackson said.

She did not spare her colleagues. Justice Antonin Scalia, Jackson said, wrote that plaintiffs faced an especially high bar when two lower courts had already denied injunctive relief. The modern court, she said, has been "noticeably less restrained," especially in high-profile matters.

The remarks built on a broader pattern. At a separate appearance earlier this week, Jackson was even more pointed. "The administration is making new policy and then insisting the new policy take effect immediately, before the challenge is decided," Jackson said, according to reports from the Associated Press and NBC News. "This uptick in the court's willingness to get involved in cases on the emergency docket is a real unfortunate problem."

Jackson added: "It's not serving the court or this country well."

Kavanaugh pushes back, in public

Jackson's comments did not go unanswered. Justice Brett Kavanaugh, who is usually in the majority when the court grants the Trump administration emergency relief, offered a direct rebuttal during a joint public appearance, an exchange NBC News called "a rare example of two justices entering into a public debate about internal court business."

Kavanaugh countered that the Supreme Court's approach to emergency requests was not unique to the Trump administration and that the high court handled the Biden administration the same way, despite there being fewer interim requests under the former president. Kavanaugh said presidents "push the envelope" more with executive orders because Congress is passing less legislation.

Kavanaugh, usually in the majority in shadow docket cases, defended the court, saying it has to act one way or another when the government or another litigant files an emergency application. He added: "Some are lawful, some are not. None of us enjoy this."

The numbers give Jackson's concern some weight. The Trump administration has brought about 30 emergency applications to the Supreme Court and secured victories about 80% of the time, according to the Brennan Center for Justice. In the last year, the court has allowed Trump to fire thousands of federal workers, assert control over previously independent federal agencies and implement various aspects of his hard-line immigration policy. All those moves, done through the shadow docket, had been blocked by lower courts.

A friction point in the lower courts

The argument between Jackson and Kavanaugh is not only theoretical. Questions about how much precedential weight to give emergency docket decisions have roiled the lower courts. Fourth Circuit judges traded barbs over the issue in April. Multiple judges expressed frustration over an admonition from Justice Neil Gorsuch in 2025 warning lower courts not to "defy" the justices' emergency docket rulings, which are typically unsigned and often unexplained.

The third-country deportation case is a clean example of the problem Jackson described. Judge Murphy issued a final ruling. The 1st Circuit upheld it September 18. Within days, the administration bypassed that entire process and went straight to First Street, N.E., asking nine justices to short-circuit two courts that had both ruled against the policy. The Trump administration filed its new petition just hours before Jackson spoke.

Since the lower court ruling, migrants must have a meaningful chance to argue a third-country deportation would put them in danger of persecution or torture. The ruling did not prohibit those deportations outright but it lengthens the process.

What to Watch

• The Supreme Court's response timeline. The justices can act quickly on emergency applications, sometimes within hours. Watch for whether a single justice first issues an administrative stay, or whether the full court acts collectively, and how any order is explained or left unsigned.
• Judge Murphy's compliance proceedings. If the administration argues the 1st Circuit order has not been honored in other pending flights, Murphy's Boston courtroom could become a flash point even before the Supreme Court rules.
• Jackson's next dissent. If the court grants the administration's application, Jackson and possibly Justices Sonia Sotomayor and Elena Kagan are likely to write publicly, applying the same "corrosive" framework she laid out at UDC Thursday night.
• The 80% figure in the midterm context. Senate candidates in at least four competitive states have made immigration enforcement a central argument. A Supreme Court order letting deportation flights resume before November could hand the administration a concrete policy win with five weeks left on the calendar.
• Rubio's State Department schedule. Secretary of State Marco Rubio's public schedule for September 25 shows senior diplomatic staff still in New York for UNGA sessions, including Senior Advisor for Arab and African Affairs Massad Boulos, which matters if the court's ruling has implications for deportations to countries in those regions.

Sources: Spectrum News/AP | Detroit News/Reuters | The Washington Post | News4Jax/AP | Bloomberg Law | Fox News | NBC News | The Daily Beast | The Washington Post | U.S. Department of State