Justice Jackson, Isolated on the Supreme Court’s Left, Grows Increasingly Outraged as Trump Racks Up Victories

Justice Ketanji Brown Jackson is increasingly finding herself at the Supreme Court’s periphery, with an emerging prose style that reflects exasperation with her colleagues — and has prompted consternation in response. The court’s junior justice — and likely its most liberal — nominated to the high bench by President Biden in 2022, is increasingly finding herself to be a minority even within the court’s three-justice liberal bloc. Justice Elena Kagan, to the surprise of many longtime court observers, is increasingly aligning with the court’s majority, leaving Justices Sonia Sotomayor and Jackson on the far-left flank. Justice Jackson has been an increasingly lonely figure of resistance, isolated at times even from Justice Sotomayor. In one such case, Stanley v. City of Sanford, Justice Jackson wrote in a footnote not joined by any other justice that the majority suffered from an “unfortunate misunderstanding of the judicial role,” and she decried “pure textualists” who interpret statutes in a fashion destined to produce the “majority’s desired outcome.” She wrote that she “cannot abide” such a “narrow-minded approach.”Justice Jackson also penned her own dissent in the nationwide injunctions case, Trump v. Casa. While she asserted that she agreed with “every word” of the dissent joined by all three liberals, she adds singly that the majority opinion curtailing nationwide injunctions is an “existential threat to the rule of law” and “permission to engage in unlawful behavior.” She accuses 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 Cony Barrett, writing for the court’s majority, was so affronted by Justice Jackson’s tone that she called it “extreme” and a “startling line of attack.” She adds, “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 reckoned that Justice Jackson’s approach was “tethered neither to … sources nor, frankly, to any doctrine whatsoever.”Justice Jackson called the majority opinion “profoundly dangerous, since it gives the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate.” In place of the customary “respectfully, I dissent,” she writes that her dissent comes with “deep disillusionment.” In a court bound by etiquette, that registers as a jarring departure with respect to comportment. In addition to increasingly purple rhetoric, Justice Jackson has also begun to display a comfort with more colloquial language. In Casa she writes “to the majority, the power-hungry actors are … (wait for it) … the district courts.” She also deployed phrases like, “Why all the fuss?” “Do not take my word for it.” The linguist John McWhorter in the Times calls this register “unusual” and reckons, “You won’t find anything like that in Marbury v. Madison.”In another dissent, in Department of Education v. California, Justice Jackson wrote, “Children, pets, and magicians might find pleasure in the clever use of such shiny-object tactics. But a court of law should not be so easily distracted.” At least one Democratic lawmaker and frequent critic of the court, Senator Whitehouse, ventured on the “Amicus” podcast that Justice Jackson is “popping out of her shell.”One constitutional law scholar, Erwin Chemerinsky, opined earlier this month that “there’s been an increase in sarcasm and put-downs among the justices” — and pointed to the exchange between Justices Jackson and Barrett as a nadir of the court’s efforts toward collegiality. Another sage, Joshua Blackman, told the Heritage Foundation this month that a “schism” could be brewing between Justice Jackson and her liberal colleagues.Justice Jackson has been outspoken outside of court as well. Earlier this month she told the Indianapolis Bar Association that she is “not afraid to use my voice” and that she worries over “the state of our democracy.” At an appearance at New Orleans, she described her perch as offering a “wonderful opportunity to tell people in my opinions how I feel about the issues, and that’s what I try to do.”

Justice Jackson, Isolated on the Supreme Court’s Left, Grows Increasingly Outraged as Trump Racks Up Victories

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