How Justice Ketanji Brown Jackson is standing out from her liberal colleagues

USA Today

2 days ago

From the Supreme Court's mahogany bench, the newest justice, Ketanji Brown Jackson, has sparred with Amy Coney Barrett and other voices of the right. Moneyed interests and power are among her targets.
WASHINGTON − After Supreme Court Justice Amy Coney Barrett announced from the court's mahogany bench last month that lower court judges had gone too far in pausing President Donald Trump's changes to birthright citizenship, the court's liberals got their turn.
Justice Sonia Sotomayor, the most senior of the three justices appointed by Democratic presidents, read parts of the trio's joint dissent for about twice as long as Barrett had described the conservative majority's opinion.
She even added a line that doesn't appear in the written version.
'The other shoe has dropped on presidential immunity,' Sotomayor said, referencing the court's landmark 2024 decision limiting when presidents can be prosecuted for actions they take in office.
But it was a separate written dissent from Justice Ketanji Brown Jackson that reverberated the most, in large part because of Barrett's scathing reaction to it.
'We will not dwell on Justice Jackson's argument, which is at odds with more than two centuries' worth of precedent, not to mention the Constitution itself,' Barrett wrote.
More: Justice Ketanji Brown Jackson can throw a punch. Literally.
Jackson's words repeatedly drew attention
It wasn't the first time in recent months that Jackson's words drew attention.
In a case about air pollution rules, Jackson said the case "gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.'
When her conservative colleagues gave Elon Musk's Department of Government Efficiency complete access to the data of millions of Americans kept by the U.S. Social Security Administration, Jackson said the court was sending a 'troubling message" that it's departing from basic legal standards for the Trump administration.
Speaking at a judge's conference in May, Jackson condemned the attacks Trump and his allies were making on judges who ruled against his policies. Her warning that the 'threats and harassment' could undermine the Constitution and the rule of law was stronger than concerns expressed by Sotomayor and by Chief Justice John Roberts.
And during the eight months that the justices heard cases, Jackson – the court's newest member in an institution that reveres seniority – once again spoke by far the most.
'I definitely do think Justice Jackson really prioritizes developing her own jurisprudence and thoughts and voice,' said Brian Burgess, a partner at the law firm Goodwin who clerked for Sotomayor. 'I can see Justice Jackson evolving into someone that wants to speak directly to the public to express the concerns of that side of the court.'
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Jackson spoke up early and often
Nominated by President Joe Biden in 2022 to succeed Justice Stephen Breyer, Jackson wasted no time being heard.
During her first two weeks on the court, she spoke more than twice as many words as any of her colleagues.
When asked about her volubility, Jackson has said she became used to operating solo on the bench during her eight years as a federal trial court judge.
She hasn't shown many signs of adjusting. Since October, Jackson spoke 50% more words on the bench than Sotomayor who was the next talkative, according to statistics compiled by Adam Feldman and Jake S. Truscott for the Empirical SCOTUS blog.
'She's the only one that has ever done what she's doing in terms of total volume of speech in her first few terms,' said Feldman, a lawyer and political scientist.
`She wanted me to...use my voice.'
Jackson has been working on her communications skills since elementary school when her mother enrolled her in a public speaking program.
'She wanted me to get out there and use my voice,' Jackson said during an appearance at the Kennedy Center last year to talk about her memoir.
And it's not just her voice.
Jackson wrote more – either opinions, concurrences or dissents – this term than anyone except Justice Clarence Thomas, according to Empirical SCOTUS blog.
Steve Vladeck, a professor at Georgetown University Law Center, said he is going to add her dissent in the air pollution case to his course on federal courts.
'She is calling things as she sees them,' Vladeck said on the liberal Strict Scrutiny podcast.
Jackson went further than her liberal colleagues
Jackson went further in that case, and in some others, than her liberal colleagues.
Sotomayor wrote her own dissent of the majority's ruling that fuel producers can challenge California emissions standards under a federal air pollution law.
And Kagan was in the 7-2 majority.
In fact, Kagan was in the majority more often this term than all but Roberts, Barrett and Justice Brett Kavanaugh – the three conservatives who often control the direction of the court. Jackson was in the majority the least often.
'You see Justice Kagan really shifting away from Justices Sotomayor and Jackson,' legal analyst Sarah Isgur said on the podcast Advisory Opinion where she dissects the court with fellow conservatives.
Different ways of being influential
Burgess, the former Sotomayor clerk, disputed that. He said the times Kagan voted against both Sotomayor and Jackson were not high-profile defections.
For example, in the air pollution case, Burgess suspects Kagan agreed with Jackson that the court should not have heard the fuel producers' appeal in part because their underlying complaint was likely to be addressed by the Trump administration. But once they took the case, the justices decided the legal issue in a way that didn't break a lot of new ground, he said.
'I think she seems to be more interested in coalition building and finding ways to eke out wins,' Burgess said of Kagan's overall style. 'That's one way to be influential. Another way to be influential is to try to stake out different views and hope that history comes along to your position over time.'
Attack on `pure textualism'
In one of Jackson's strong dissents, in a case about whether the Americans with Disabilities Act protected a disabled retiree whose health benefits were reduced, Sotomayor was on board – except for a footnote.
In that lengthy paragraph, Jackson criticized her conservative colleagues' use of 'pure textualism' as 'certainly somehow always flexible enough to secure the majority's desired outcome.'
'She's saying what I think so many of us have been thinking,' Vladeck said on the podcast.
He wondered whether Sotomayor didn't sign onto that footnote because she didn't agree with it or because she wanted to 'let Jackson have it for herself and not take credit for what really is an unusually strong accusation of methodological manipulation by one of the justices.'
`With deep disillusionment, I dissent.'
Strong accusations flew in both directions about the court's ruling limiting the ability of judges to pause Trump's policies.
In her solo dissent, Jackson called the majority's 'legalese' a smokescreen obscuring a 'basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?'
'The very institution our founding charter charges with the duty to ensure universal adherence to the law now requires judges to shrug and turn their backs to intermittent lawlessness,' she wrote. 'With deep disillusionment, I dissent.'
Barrett said there's no dispute that presidents must obey the law.
'But the Judiciary does not have unbridled authority to enforce this obligation – in fact, sometimes the law prohibits the Judiciary from doing so,' she wrote.
Jackson, Barrett said, would 'do well to heed her own admonition' that everyone from the president on down is bound by the law.
'That goes for judges too,' she wrote.
A focus on real-world impact and individual rights
Legal commentator David Lat said Barrett's response departed from her usual 'rather restrained rhetoric.' In a Substack article, Lat noted that Barrett once described herself as a 'one jalapeño gal' compared to the late Justice Antonin Scalia, for whom Barrett clerked, who had a 'five jalapeño' style.
Feldman said it's possible that Jackson's willingness to vocalize her disagreements with her conservative colleagues is getting under their skins.
In a February article about how Barrett and Jackson are shaping the future of constitutional law, Feldman said the two sharp legal minds approach cases from strikingly different angles on how the law should function and who it should protect.
Barrett prioritizes legal precision and institutional boundaries while Jackson focuses on real-world impact and individual rights, he wrote.
When people look back at the Trump case, he told USA TODAY, they will be talking about Jackson's dissent.
'That's probably the one from the term,' he said, 'that will last the longest.'