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CNN
6 days ago
- Politics
- CNN
Analysis: A little snark, a little sarcasm: How dissenting opinions catch our attention
Justice Ketanji Brown Jackson's dissenting opinions have provoked criticism for their casual and even disdainful tone. She's called colleagues 'hubristic and senseless' and added sarcastic asides. But she is not the first Supreme Court justice in recent decades to rouse the public with cheeky rhetoric. The late Justice Antonin Scalia was a master of the put-down, often in such memorable terms as his 2013 ridicule of the majority's 'legalistic argle-bargle.' The current debate brings to the fore how the nine justices communicate with the public and especially how those on the losing end get their message out as Americans are focused on the court's response to the aggressive Trump agenda. When Jackson dissented from the majority's decision rolling back nationwide injunctions against the Trump plan to end birthright citizenship, she wrote, '(I)n this clash over the respective powers of two coordinate branches of Government, the majority sees a power grab—but not by a presumably lawless Executive choosing to act in a manner that flouts the plain text of the Constitution. Instead, to the majority, the power-hungry actors are … (wait for it) … the district courts.' Supreme Court opinions can be dense and difficult for non-lawyers to read. So, a conversational style draws attention, especially if it pitches a few insults with colloquialisms. As some commentators have noted, Jackson's use of 'wait for it' and, in separate instances, 'Why all the fuss?' and 'full stop,' particularly offended critics. But it was Scalia who countered the majority's reasoning in a 2015 case declaring a right to same-sex marriage with, 'Huh?' Scalia, who served on the court from 1986 to 2016 and whose conservatism was the opposite of Jackson's liberalism, wrote in that case that he'd rather 'hide my head in a bag' than accept the prose of majority author Justice Anthony Kennedy. Separately, in a 2007 dispute, Scalia charged Chief Justice John Roberts with 'faux judicial restraint.' Amid today's social media toxicity and President Donald Trump's nonstop name-calling, such judicial insults pale. But certain expectations exist with the language of law. 'On the whole, judicial writing is extremely staid, to the point of being boring,' said Bryan A. Garner, a widely cited legal scholar who has authored several books on judicial writing and jurisprudence. 'And when a judge writes in a more pointed, powerful, colloquial style it certainly gets people's attention, and the more stodgy lawyer-types are going to say, 'Oh my goodness, this is inappropriate.'' Reactions to breezy or even brazen language in rulings can cut two ways. Such wording elicits more notice but can mean the author's views are dismissed out of hand. Naturally, many critics of Scalia's style were liberal, while many of Jackson's are conservative. The current attention on justices' opinions also flows from the public's interest in whether the Supreme Court will serve as a check on the administration's excesses. Dissenting liberals have seized on that interest, employing everyday language to make their positions known. 'Other litigants must follow the rules, but the administration has the Supreme Court on speed dial,' Justice Sonia Sotomayor wrote in one choice dissent joined only by Jackson. At the Supreme Court, a majority opinion necessarily needs at least five votes, so the author tends to stick to subdued expressions to avoid turning off any crucial justice. And those who've lost have more reason to be linguistically fired up. In the court's recently completed session, the six Republican-appointed conservatives controlled the most closely watched cases. Jackson, named by President Joe Biden in 2022, is not just one of the three outnumbered Democratic-appointed liberals. As the newest justice, she also has the least seniority, speaking last in the justices' private meetings and voting last. She has, however, made several moves to ensure that her views are not lost. She speaks and writes more than most of her colleagues. She has heavily promoted a memoir she began writing as soon as she took the bench. And Jackson's predictions are more dire. 'Perhaps the degradation of our rule-of-law regime would happen anyway,' Jackson wrote in her June 27 dissent in the case related to Trump's effort to end birthright citizenship. 'But this court's complicity in the creation of a culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.' Fellow dissenters Sotomayor and Elena Kagan declined to sign on. Justice Amy Coney Barrett, who wrote for the majority, dismissively rejected Jackson's line of reasoning and mocked her rhetoric, adding, 'Rhetoric aside, Justice Jackson's position is difficult to pin down.' Earlier, in April, in another solo dissent, Jackson invoked the court's notorious 1944 case of Korematsu v. United States, when the justices upheld the internment of Japanese Americans during World War II. Jackson derided the court majority's decision to let the administration use the 18th-century Alien Enemies Act to deport Venezuelan nationals to El Salvador. The majority had acted swiftly on the administration's appeal in the controversy over the 1798 wartime law, issuing an unsigned, brief four-page opinion. 'At least when the Court went off base in the past,' Jackson wrote, 'it left a record so posterity could see how wrong it went.' In the controversy at hand, Jackson noted, the court decided the matter without the usual briefing or public arguments, leaving, as she wrote, 'less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.' Fellow dissenters in the Alien Enemies Act case declined to join her words. In a separate instance, Sotomayor, who has been most willing to sign Jackson's dissents, conspicuously separated herself from a Jackson gibe against Justice Neil Gorsuch and his textualist approach for the majority in a case involving the Americans with Disabilities Act. There may be a fine line between sarcastically denigrating reasoning and denigrating a colleague. Five years ago, when Justice Elena Kagan wrote an acerbic dissent in a dispute over the Consumer Financial Protection Bureau, all three of her then-fellow liberals signed on. 'What does the Constitution say about the separation of powers—and particularly about the President's removal authority? (Spoiler alert: about the latter, nothing at all.) The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase.' For his part, Garner says separating criticism of judicial thought from criticism of the judicial thinker is nearly impossible. Regarding denunciations of Jackson, Garner said, 'It may be that the criticisms are so exercised because her arguments seem so effective. And therefore, instead of addressing the substance of them, people are attacking their form. People did the same thing with Justice Scalia.' (Garner co-authored two books with Scalia, 'Making Your Case' and 'Reading Law.') Trump's return to the White House has no doubt intensified the politically charged atmosphere around the court and the executive. Norms have evolved in all ways. Back in 1947, the first Justice Jackson — Justice Robert H. Jackson — expressed what critics at the time deemed scathing contempt for his colleagues, as he declared in the regulatory power case of Securities and Exchange Commission v. Chenery Corp.: 'I give up. Now I realize fully what Mark Twain meant when he said, 'The more you explain it, the more I don't understand it.'' That, Garner said, was what once amounted to nearly intolerable disrespect.
CNN
6 days ago
- Politics
- CNN
Analysis: A little snark, a little sarcasm: How dissenting opinions catch our attention
Justice Ketanji Brown Jackson's dissenting opinions have provoked criticism for their casual and even disdainful tone. She's called colleagues 'hubristic and senseless' and added sarcastic asides. But she is not the first Supreme Court justice in recent decades to rouse the public with cheeky rhetoric. The late Justice Antonin Scalia was a master of the put-down, often in such memorable terms as his 2013 ridicule of the majority's 'legalistic argle-bargle.' The current debate brings to the fore how the nine justices communicate with the public and especially how those on the losing end get their message out as Americans are focused on the court's response to the aggressive Trump agenda. When Jackson dissented from the majority's decision rolling back nationwide injunctions against the Trump plan to end birthright citizenship, she wrote, '(I)n this clash over the respective powers of two coordinate branches of Government, the majority sees a power grab—but not by a presumably lawless Executive choosing to act in a manner that flouts the plain text of the Constitution. Instead, to the majority, the power-hungry actors are … (wait for it) … the district courts.' Supreme Court opinions can be dense and difficult for non-lawyers to read. So, a conversational style draws attention, especially if it pitches a few insults with colloquialisms. As some commentators have noted, Jackson's use of 'wait for it' and, in separate instances, 'Why all the fuss?' and 'full stop,' particularly offended critics. But it was Scalia who countered the majority's reasoning in a 2015 case declaring a right to same-sex marriage with, 'Huh?' Scalia, who served on the court from 1986 to 2016 and whose conservatism was the opposite of Jackson's liberalism, wrote in that case that he'd rather 'hide my head in a bag' than accept the prose of majority author Justice Anthony Kennedy. Separately, in a 2007 dispute, Scalia charged Chief Justice John Roberts with 'faux judicial restraint.' Amid today's social media toxicity and President Donald Trump's nonstop name-calling, such judicial insults pale. But certain expectations exist with the language of law. 'On the whole, judicial writing is extremely staid, to the point of being boring,' said Bryan A. Garner, a widely cited legal scholar who has authored several books on judicial writing and jurisprudence. 'And when a judge writes in a more pointed, powerful, colloquial style it certainly gets people's attention, and the more stodgy lawyer-types are going to say, 'Oh my goodness, this is inappropriate.'' Reactions to breezy or even brazen language in rulings can cut two ways. Such wording elicits more notice but can mean the author's views are dismissed out of hand. Naturally, many critics of Scalia's style were liberal, while many of Jackson's are conservative. The current attention on justices' opinions also flows from the public's interest in whether the Supreme Court will serve as a check on the administration's excesses. Dissenting liberals have seized on that interest, employing everyday language to make their positions known. 'Other litigants must follow the rules, but the administration has the Supreme Court on speed dial,' Justice Sonia Sotomayor wrote in one choice dissent joined only by Jackson. At the Supreme Court, a majority opinion necessarily needs at least five votes, so the author tends to stick to subdued expressions to avoid turning off any crucial justice. And those who've lost have more reason to be linguistically fired up. In the court's recently completed session, the six Republican-appointed conservatives controlled the most closely watched cases. Jackson, named by President Joe Biden in 2022, is not just one of the three outnumbered Democratic-appointed liberals. As the newest justice, she also has the least seniority, speaking last in the justices' private meetings and voting last. She has, however, made several moves to ensure that her views are not lost. She speaks and writes more than most of her colleagues. She has heavily promoted a memoir she began writing as soon as she took the bench. And Jackson's predictions are more dire. 'Perhaps the degradation of our rule-of-law regime would happen anyway,' Jackson wrote in her June 27 dissent in the case related to Trump's effort to end birthright citizenship. 'But this court's complicity in the creation of a culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.' Fellow dissenters Sotomayor and Elena Kagan declined to sign on. Justice Amy Coney Barrett, who wrote for the majority, dismissively rejected Jackson's line of reasoning and mocked her rhetoric, adding, 'Rhetoric aside, Justice Jackson's position is difficult to pin down.' Earlier, in April, in another solo dissent, Jackson invoked the court's notorious 1944 case of Korematsu v. United States, when the justices upheld the internment of Japanese Americans during World War II. Jackson derided the court majority's decision to let the administration use the 18th-century Alien Enemies Act to deport Venezuelan nationals to El Salvador. The majority had acted swiftly on the administration's appeal in the controversy over the 1798 wartime law, issuing an unsigned, brief four-page opinion. 'At least when the Court went off base in the past,' Jackson wrote, 'it left a record so posterity could see how wrong it went.' In the controversy at hand, Jackson noted, the court decided the matter without the usual briefing or public arguments, leaving, as she wrote, 'less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.' Fellow dissenters in the Alien Enemies Act case declined to join her words. In a separate instance, Sotomayor, who has been most willing to sign Jackson's dissents, conspicuously separated herself from a Jackson gibe against Justice Neil Gorsuch and his textualist approach for the majority in a case involving the Americans with Disabilities Act. There may be a fine line between sarcastically denigrating reasoning and denigrating a colleague. Five years ago, when Justice Elena Kagan wrote an acerbic dissent in a dispute over the Consumer Financial Protection Bureau, all three of her then-fellow liberals signed on. 'What does the Constitution say about the separation of powers—and particularly about the President's removal authority? (Spoiler alert: about the latter, nothing at all.) The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase.' For his part, Garner says separating criticism of judicial thought from criticism of the judicial thinker is nearly impossible. Regarding denunciations of Jackson, Garner said, 'It may be that the criticisms are so exercised because her arguments seem so effective. And therefore, instead of addressing the substance of them, people are attacking their form. People did the same thing with Justice Scalia.' (Garner co-authored two books with Scalia, 'Making Your Case' and 'Reading Law.') Trump's return to the White House has no doubt intensified the politically charged atmosphere around the court and the executive. Norms have evolved in all ways. Back in 1947, the first Justice Jackson — Justice Robert H. Jackson — expressed what critics at the time deemed scathing contempt for his colleagues, as he declared in the regulatory power case of Securities and Exchange Commission v. Chenery Corp.: 'I give up. Now I realize fully what Mark Twain meant when he said, 'The more you explain it, the more I don't understand it.'' That, Garner said, was what once amounted to nearly intolerable disrespect.
Fox News
26-06-2025
- Politics
- Fox News
Revisiting Justice Scalia's same-sex marriage dissent: prophetic or inflammatory?
Ten years after Justice Antonin Scalia warned in a feisty dissent that the Supreme Court's Obergefell v. Hodges decision "was a threat to American democracy," his scathing criticisms of judicial overreach are now amplified by the White House. President Donald Trump's posture toward the judiciary branch has been largely hostile as judges repeatedly hand down orders derailing his agenda. His accusations that they are overstepping their authority echo arguments presented by Scalia when he laid out his disagreement with the Supreme Court ruling in 2015 that same-sex marriage was a constitutional right. "Justice Scalia was actually one of the primary drivers of this," constitutional law scholar John Shu, who served in both Bush administrations, told Fox News Digital. Scalia, a textualism adherent, argued in a fiery nine-page dissent that the right to marriage was not a liberty that was spelled out in the Constitution. The 5-4 decision, in fact, stripped liberty from citizens because it took away their ability to choose the leaders they felt could enact whichever marriage-related legislation they preferred, Scalia said. At the time of the ruling, states were divided on marriage. Nearly a dozen had passed laws at that point to legalize gay marriage, which, in Scalia's and the other dissenters' minds, was the appropriate vehicle for that. "A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy," Scalia wrote. But Scalia did not stop there, blasting the "hubris" of the high court's decision and taking veiled jabs at the majority opinion author, Justice Anthony Kennedy, a Reagan appointee known for his flowery legal writing. Scalia is "nothing if not consistent," Marquette University legal analysis professor Lisa Mazzie observed at the time. His dissent "contains the kind of over-the-top often acerbic rhetoric we've come to associate with him." Shu, who knew Scalia personally, told Fox News Digital the late justice could go "a little overboard" at times. "He was incredibly funny, great sense of humor, a great mentor, a great teacher. But he had very strong beliefs, and for people who would criticize his writing and say that sometimes he went a little overboard in the drama potion, okay, I would tend to agree on certain cases," Shu said. "It certainly wasn't the case all the time." Critics described his Obergefell dissent as extreme and disrespectful. Among Scalia's most memorable lines: "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." He said Kennedy's opinion contained "straining-to-be-memorable passages" and was "couched in a style that is as pretentious as its content is egotistic." While the Trump White House is not the first to accuse judges of overstepping and infusing progressive politics into their rulings, Trump and his deputies have projected a uniquely potent rage toward the judiciary, saying the judges are encroaching on powers afforded to him under Article II of the Constitution. "Our Court System is not letting me do the job I was Elected to do," Trump wrote online in May in response to an adverse immigration ruling. In February, he lambasted a "highly political, activist Judge" who ruled the executive branch had to make payments Congress approved it to make, despite the Department of Government Efficiency, or DOGE, moving to stop the payments. In perhaps the biggest judicial blow, the U.S. Court of International Trade struck down in May the central feature of Trump's economic agenda, his tariff plan. That decision is temporarily on hold, but after the ruling, Trump questioned the three-judge panel that went against him: "How is it possible for them to have potentially done such damage to the United States of America?" Unlike Scalia's era, the Supreme Court is now tilted 6-3 toward conservatives. It has been cautious about attempting to constrain Trump's power in the early stages of litigation. "Hopefully, the Supreme Court will reverse this horrible, Country threatening decision, QUICKLY and DECISIVELY," Trump wrote of the tariff ruling.
New York Times
11-06-2025
- Politics
- New York Times
What Happens if ‘Harvard Is Not Harvard'?
As President Trump and his team dialed up the pressure on Harvard University last month, threatening to bar its international students, the school issued what was at once a warning and a plea. 'Without its international students, Harvard is not Harvard,' school officials wrote in a lawsuit asking a judge to stop the federal government's actions. It left unsaid what Harvard, if it were no longer Harvard, would become. It's a scenario that some inside Harvard are beginning to imagine and plan for as the Trump administration lobs attacks from all angles, seeking to cut the university off from both students and billions of dollars in federal funding. Top leaders at Harvard, one of the nation's oldest universities, including its provost, John F. Manning, a conservative legal scholar who once clerked for the former Supreme Court justice Antonin Scalia, are meeting more frequently to strategize. The school's board of trustees, the Harvard Corporation, has discussed whether hundreds, if not thousands, of people will need to be laid off. And on 8:30 a.m. Zoom calls once or twice a week, administrative officials meet with senior leaders of Harvard's undergraduate and graduate schools to share updates about the latest Trump developments, which keep coming rapid-fire. Want all of The Times? Subscribe.
Yahoo
31-05-2025
- General
- Yahoo
The Unconstitutional Conservatives
Not too long ago, many Republicans proudly referred to themselves as 'constitutional conservatives.' They believed in the rule of law; in limiting the power of government, especially the federal government; in protecting individual liberty; and in checks and balances and the separation of powers. They opposed central planning and warned about emotions stirred up by the mob and the moment, believing, as the Founders did, that the role of government was to mediate rather than mirror popular passions. They recognized the importance of self-restraint and the need to cultivate public and private virtues. And they had reverence for the Constitution, less as a philosophical document than a procedural one, which articulated the rules of the road for American democracy. When it came to judicial philosophy, 'constitutional conservatism' meant textualism, which prioritizes the plain meaning of the text in statutes and the Constitution. Justice Antonin Scalia excoriated outcome-based jurisprudence; judges should never prioritize their own desired outcomes, he warned, but should instead apply the text of the Constitution fairly. 'The main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law,' he said in 1988, 'is that the judges will mistake their own predilections for the law.' One of the reasons Roe v. Wade was viewed as a travesty by conservatives is that they believed the 1973 Supreme Court decision twisted the Constitution to invent a 'right to privacy' in order to legalize abortion. The decision, they felt, was driven by a desired outcome rather than a rigorous analysis of legal precedent or constitutional text. WHICH IS WHY it's hard to think of a more anti-conservative figure than President Donald Trump or a more anti-conservative movement than MAGA. Trump and his supporters evince a disdain for laws, procedures, and the Constitution. They want to empower the federal government in order to turn it into an instrument of brute force that can be used to reward allies and destroy opponents. [Read: In Trump immigration cases, it's one thing in public, another in court] Trump and his administration have abolished agencies and imposed sweeping tariffs even when they don't have the legal authority to do so. They are deporting people without due process. Top aides are floating the idea of suspending the writ of habeas corpus, one of the most important constitutional protections against unlawful detention. Judges, who are the target of threats from the president, fear for their safety. So do the very few Republicans who are willing to assert their independence from Trump. In one of his first official acts, Trump granted clemency to more than 1,500 people charged in connection with the violent attack on the Capitol on January 6, 2021, including those convicted of seditious conspiracy. The president and his family are engaging in a level of corruption that was previously unfathomable. And he and his administration have shown no qualms about using the federal government to target private companies, law firms, and universities; suing news organizations for baseless reasons; and ordering criminal probes into former administration officials who criticized Trump. The Trump administration is a thugocracy, and the Republican Party he controls supports him each step of the way. Almost every principle to which Republicans once professed fealty has been jettisoned. The party is now devoted to the abuse of power and to vengeance. POLITICAL THEORISTS recognize that the governing approach of Trump and the GOP embodies the philosophy of Nietzsche and Machiavelli. It's all about the world of 'Anything goes' and 'Might makes right.' Laws and the Constitution are as malleable as hot wax; they can be reshaped as needed. Limited government has been traded for the Leviathan, and there are no constraints. The state has become a blunt-force instrument. The significance of this shift can hardly be overstated. A party that formerly proclaimed allegiance to the Constitution and the rule of law, warned about the concentration and abuse of power, and championed virtue, restraint, and moral formation has been transmogrified. The Republican Party now stands for everything it once loathed. [Peter Wehner: America's Mad King] If this rot was confined to the GOP, it would be tragic but manageable. But Trump and the Republican Party control the levers of federal power. As a result, less than five months into Trump's second term, America is heading toward a form of authoritarianism. We are still mid-story. The outcome is not ordained, and the courts are turning out to be, for the most part, a vital bulwark against Trumpism. The clashes will surely intensify as Trump rages against the storm. But as he does so, the resistance to him will grow and intensify too, and it will find expression in many different ways. The flame of liberty hasn't been extinguished quite yet. Love of country is, as the historian Gertrude Himmelfarb said, an ennobling sentiment, worthy of our affections. And love of country demands that those who love America and her ideals stand up against a man and a party intent on destroying them. *Illustration by Akshita Chandra / The Atlantic. Sources: The Nature Notes / Alamy; Getty Article originally published at The Atlantic
