Justice Ketanji Brown Jackson’s dissent to the Supreme Court issuing of a temporary injunction allowing a Maine lawmaker, Laurel Libby, to speak and vote in her state’s house of representatives cited an unlikely authority — Justice Amy Coney Barrett.

Representative Libby, a critic of Maine’s policy of allowing  transgender athletes to compete in high school sports, was censored and silenced after she posted online a photograph of a transgender girl winning a pole vault event — juxtaposed with an image of the same student participating in a boys’ event the year before. The house barred her from participation until she apologized.

Ms. Libby, with the support of the Trump administration, filed an emergency appeal to the Supreme Court alleging that her First Amendment rights had been violated and that her constituents had been disenfranchised by her inability to speak or vote. The Nine agreed, by a vote of 7 to 2, to reverse the ban temporarily until the case can be fully litigated in lower courts. The majority did not divulge its reasoning. 

Neither did one of the dissenters, Justice Sonia Sotomayor. The other, though, Justice Jackson, penned a scathing rationale for why she would have had the court reject Ms. Libby’s petition. She contends that the kind of relief Ms. Libby sought “is not a matter of right, but of discretion sparingly exercised” and that she did not clear this “high bar.” 

Justice Jackson is skeptical of Ms. Libby’s argument that she has been harmed by the restrictions on her participation. The justice reasons that Ms. Libby has “not asserted that there are any significant legislative votes scheduled in the upcoming weeks” nor that “that there are any upcoming votes in which Libby’s participation would impact the outcome.” Justice Jackson notes that the First Appeals Court is moving expeditiously on the case.

Justice Jackson, to support her position that the court’s intervention is “inequitable and unwise,” turns to a concurrence written by Justice Barrett in 2021. In the case of Does v. Mills, Justice Barrett wrote that emergency petitions like Ms. Libby’s are handled “on a short fuse without benefit of full briefing and oral argument.” Does turned on a Maine law requiring that all employees in healthcare facilities get vaccinated against Covid-19.

In Does, Justice Barrett joined with Justice Brett Kavanaugh and the court’s liberals in denying an emergency appeal for an injunction to freeze the vaccination requirement. Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito dissented because “Maine’s rule contains no exemption for those whose sincerely held religious beliefs preclude them from accepting the vaccination,” a lacuna they reckoned presented a “serious error, and an irreparable injury.”

Justice Jackson was not on the Supreme Court to weigh in on Does, but by citing Justice Barrett in the present case she puts into sharp relief the contrast between the denial of the petition in Does and the granting of the one at issue in this case. Justice Jackson could also be laying the groundwork for winning the conservative justice to her side if the case comes back before the court. 

While citing a fellow justice in dissent is hardly unusual, the mention of Justice Barrett occurs twice, the final time in the dissent’s ultimate paragraph. That suggests she wanted the allusion to serve as something of a closing — and lingering — note. That placement comes as Justice Barrett, who was appointed by President Trump in 2020, is sending signals that she could evolve into a swing vote on the court. 

Justice Barrett, in oral arguments last week over nationwide injunctions, explicitly aligned with a liberal justice, Elena Kagan, over concerns that the Trump administration’s position against the practice could facilitate disobedience with respect to court orders. Justice Barrett, in grilling Solicitor General Sauer, indicated that she could end up siding with the court’s left flank, just as she did in a case involving some $2 billion in federal spending. 

The question of emergency injunctions appears likely to grow in importance as the high court’s term comes to an end next month. The government’s challenges to birthright citizenship and nationwide injunctions arrived at the court via that path, as have challenges to the Trump administration’s deportation agenda.