Ketanji Brown Jackson turns independent streak loose on fellow justices

The Hill

11 hours ago

To hear Justice Ketanji Brown Jackson tell it, it's a 'perilous moment for our Constitution.'
The Supreme Court's most junior justice had pointed exchanges with her colleagues on the bench this term, increasingly accusing them of unevenly applying the law — even if it meant standing on her own from the court's other liberal justices.
Jackson has had an independent streak since President Biden nominated her to the bench in 2022. But the dynamic has intensified this term, especially as litigation over President Trump's sweeping agenda reached the court.
It climaxed with her final dissent of decision season, when Jackson accused her fellow justices of helping Trump threaten the rule of law at a moment they should be 'hunkering down.'
'It is not difficult to predict how this all ends,' Jackson wrote. 'Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.'
Her stark warning came as Trump's birthright citizenship order split the court on its 6-3 ideological lines, with all three Democratic appointed justices dissenting from the decision to limit nationwide injunctions.
Jackson bounded farther than her two liberal colleagues, writing in a blistering solo critique that said the court was embracing Trump's apparent request for permission to 'engage in unlawful behavior.'
The decision amounts to an 'existential threat to the rule of law,' she said.
It wasn't the first time Jackson's fellow liberal justices left her out in the cold. She has been writing solo dissents since her first full term on the bench.
Jackson did so again in another case last month when the court revived the energy industry's effort to axe California's stricter car emission standard. Jackson accused her peers of ruling inequitably.
'This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens,' Jackson wrote. 'Because the Court had ample opportunity to avoid that result, I respectfully dissent.'
Rather than join Justice Sonia Sotomayor's dissent that forewent such fiery language, Jackson chose to pen her own.
The duo frequently agrees. They were on the same side in 94 percent of cases this term, according to data from SCOTUSblog, more than any other pair except for Justices Clarence Thomas and Samuel Alito, the court's two leading conservatives.
Sometimes Sotomayor signs on to Jackson's piercing dissents, including when she last month condemned the court's emergency order allowing the Department of Government Efficiency to access Americans' Social Security data.
'The Court is thereby, unfortunately, suggesting that what would be an extraordinary request for everyone else is nothing more than an ordinary day on the docket for this Administration, I would proceed without fear or favor,' Jackson wrote.
But it appears there are rhetorical lines the most senior liberal justice won't cross.
In another case, regarding disability claims, Sotomayor signed onto portions of Jackson's dissent but rejected a footnote in which Jackson slammed the majority's textualism as 'somehow always flexible enough to secure the majority's desired outcome.'
'Pure textualism's refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences,' the most junior justice wrote, refusing to remove the footnote from her dissent.
Jackson's colleagues don't see it that way.
'It's your job to do the legal analysis to the best you can,' Chief Justice John Roberts told a crowd of lawyers at a judicial conference last weekend, rejecting the notion that his decisions are driven by the real-world consequences.
'If it leads to some extraordinarily improbable result, then you want to go back and take another look at it,' Roberts continued. 'But I don't start from what the result looks like and go backwards.'
Though Roberts wasn't referencing Jackson's recent dissents, her willingness to call out her peers hasn't gone unaddressed.
Jackson's dissent in the birthright citizenship case earned a rare, merciless smackdown from Justice Amy Coney Barrett, cosigned by the court's conservative majority. Replying to Jackson's remark that 'everyone, from the President on down, is bound by law,' Barrett turned that script into her own punchline.
'That goes for judges too,' the most junior conservative justice clapped back.
Deriding Jackson's argument as 'extreme,' Barrett said her dissenting opinion ran afoul of centuries of precedent and the Constitution itself.
'We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary,' Barrett wrote.
The piercing rebuke was a staunch departure from the usually restrained writing of the self-described 'one jalapeño gal.' That's compared to the five-jalapeño rhetoric of the late Justice Antonin Scalia, Barrett said, the late conservative icon for whom she clerked.
On today's court, it is often Thomas who brings some of the most scathing critiques of Jackson, perhaps most notably when the two took diametrically opposite views of affirmative action two years ago.
Page after page, Thomas ripped into Jackson's defense of race-conscious college admissions, accusing her of labeling 'all blacks as victims.'
'Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds,' Thomas wrote in a concurring opinion.
It isn't Thomas's practice to announce his separate opinions from the bench, but that day, he said he felt compelled to do so. As he read it aloud from the bench for 11 minutes, Jackson stared blankly ahead into the courtroom.
Jackson's boldness comes across not only in the court's decision-making. At oral arguments this term, she spoke 50 percent more than any other justice.
She embraces her openness. She told a crowd in May while accepting an award named after former President Truman that she liked to think it was because they both share the same trait: bravery.
'I am also told that some people think I am courageous for the ways in which I engage with litigants and my colleagues in the courtroom, or the manner in which I address thorny issues in my legal writings,' Jackson said.
'Some have even called me fearless.'