Justice Jackson, Alone on the Supreme Court’s Left Flank, Takes Criticism From Fellow Liberal Justices Kagan and Sotomayor

Justice Ketanji Brown Jackson’s lone dissent in the Supreme Court’s eight to one decision in Chiles v. Salazar striking down Colorado’s ban on conversion therapy puts in sharp relief her distance from even the rest of the high court’s liberal wing. The challenge to the Centennial State came from a therapist, Kaley Chiles, who contended that Colorado’s ban violated her First Amendment right by subjecting her to punishment for using talk therapy to help teenagers struggling with their sexual orientation or gender dysphoria. In June the Nine upheld statewide bans of transgender treatments for minors, which did not implicate speech and the issue of viewpoint discrimination. Justice Neil Gorsuch, writing for the majority in this case, declared that “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely.” Some 20 other states have bans on conversion therapy on the books, statutes that are now endangered.The law, passed in 2019, prohibits “any practice or treatment” that tries to change a minor’s “gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” It has never been enforced, and includes an exemption for those “engaged in the practice of religious ministry.” Justice Gorsuch nevertheless calls the ban an “egregious assault” on freedom of speech. Ms. Chiles explained in her brief that she was working with clients “seeking to reduce or eliminate unwanted sexual attractions.”While Justice Jackson was the only pure dissent, her liberal colleague Justice Elena Kagan wrote a concurrence joined by Justice Sonia Sotomayor that called Colorado’s law a “textbook” case of viewpoint discrimination, which is “the most suspect of all speech regulations.” She reasoned that “if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.” The concurrence could serve as a blueprint for states to revise their legislation on conversion therapy.Remarkably Justice Kagan, in a footnote, takes a swipe at Justice Jackson’s dissent, which the former dean of Harvard Law School reckons “rests on reimagining — and in that way collapsing — the well-settled distinction between viewpoint-based and other content-based speech restrictions.” The implication is that Justice Jackson has elided a difference in constitutional bedrock that would have been hammered into any law student. Justice Kagan provides a citation to a case from 2024 that elucidates this point. Justice Jackson, the court’s junior jurist who was appointed to the bench by President Biden in 2022, took the unusual step of reading her dissent aloud from the bench, a practice justices typically reserve for their most vociferous objections. She ventured that the court’s decision “misreads our precedents, is unprincipled and unworkable, and will eventually prove untenable for those who rely upon the long-recognized responsibility of States to regulate the medical profession for the protection of public health.”Justice Jackson takes Colorado’s position that the state was within its right to regulate medical practices. She writes that “Talk therapy is a medical treatment. So, why wouldn’t such speech-based medical treatments be subject to reasonable state regulation like any other kind of medical care?” She calls the potential effects of this ruling “catastrophic” and insists that the “Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel.” This is far from the first time that Justice Jackson has stood sentinel on the court’s far left flank. In Trump v. Casa, the case that curtailed the use of nationwide injunctions by federal district court judges, she wrote singly to call the Trump Administration’s position an “existential threat to the rule of law” and “permission to engage in unlawful behavior.” She accused her colleagues of creating a “zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes.”Justice Amy Coney Barrett, writing for the majority, was so shocked by that language that she called it “extreme” and a “startling line of attack.” She added that “We will not dwell on Justice Jackson’s argument. … We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” Justice Barrett described Justice Jackson’s approach as “tethered neither to … sources nor, frankly, to any doctrine whatsoever.”In another case, Stanley v. City of Stamford, Justice Jackson wrote, in a footnote joined by no other justice, that her colleagues exhibited an “unfortunate misunderstanding of the judicial role.” She decried “pure textualists” who interpret statutes in a fashion destined to produce the “majority’s desired outcome.” Justice Jackson wrote that she “cannot abide” such a “narrow-minded approach.”Justice Jackson has also been outspoken off the bench. She told the Indianapolis Bar Association last summer that she is “not afraid to use my voice” and that she worries over “the state of our democracy.”

Justice Jackson, Alone on the Supreme Court’s Left Flank, Takes Criticism From Fellow Liberal Justices Kagan and Sotomayor

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