Justice Jackson’s Invocation of a ‘Kafkaesque Nightmare’ Proves Too Extreme for Even Her Fellow Liberal Justices

Justice Ketanji Brown Jackson’s condemnation of the Supreme Court’s decision to lift a block on the Trump administration’s mail-in-voting executive order, signed in March, as a “Kafkaesque nightmare” is all the more stark because not a single other justice joined her.The high court earlier this week lifted two lower-court injunctions that blocked Mr. Trump’s push for a more robust role for the United States Postal Service’s mail-in voting. The decision came along a six-to-three ideological split, with the conservatives carrying the day. The majority insisted that because the Postal Service had not yet issued its final rule, the injunctions were premature.Justice Jackson refused to join her liberal colleagues, Justices Elena Kagan and Sonia Sotomayor, in their joint dissent, though she agreed with them that the injunctions ought to have remained in place. Instead, she wrote her own separate dissent, shot through with combative rhetoric. She accused her conservative colleagues of a “lack of situational awareness” and thundered that “it is both a serious legal error and a grave misuse of our equitable emergency powers to let the Executive proceed even one step further.”Justice Jackson, who was nominated by President Biden to the high bench in 2022, declared that the lifting of the injunctions on Mr. Trump’s executive order “lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating.” The reference is to the Czech-Jewish 20th-century literary master who, writing in German, crafted a series of enigmatic, surreal, and nightmarish works of fiction that have become symbolic of the byzantine and incomprehensible, tinged with horror.This is hardly the first time that Justice Jackson has chosen a path as a soloist rather than joining the court’s small liberal chorus. In Trump v. Casa, decided last year, the court’s conservatives sharply limited the ability of district judges to issue nationwide injunctions. Justice Jackson wrote separately from Justices Kagan and Sotomayor to denounce the ruling as an assault on democracy and an “existential threat to the rule of law.”Justice Amy Coney Barrett was so incensed by that rhetoric that she wrote in turn that “We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”In another case from 2025, National Institute of Health v. American Public Health Association, a five-to-four court allowed the Trump administration to cancel some $800 million in NIH grants. Justice Jackson once again authored a solo dissent, in which she called the decision akin to “Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.”In Stanley v. City of Sanford, also decided last year, the court held that the Americans With Disabilities Act does not allow retrospective claims. While Justice Sotomayor joined Justice Jackson’s dissent, the more senior justice withdrew her endorsement from a footnote in that dissent in which Justice Jackson declared that she “cannot abide” the “narrow-minded approach” embraced by the court’s majority, which has yielded a “stingy outcome.” Justice Jackson told a gathering of lawyers in Indianapolis last year that “I’m not afraid to use my voice.”In a case from this term, Chiles v. Salazar, Justice Jackson was the only dissenter in an eight-to-one decision striking down Colorado’s ban on conversion therapy. Justice Jackson, taking the rare step of reading her dissent from the bench, declared that the ruling “misreads our precedents, is unprincipled and unworkable, and will eventually prove untenable.” Justice Kagan, though, noted in a critical footnote that her dissent “rests on reimagining — and in that way collapsing — the well-settled distinction between viewpoint-based and other content-based speech restrictions.”Justice Jackson appears to be embracing her role as something of a voice in the wilderness on a court tilted toward the right. She told “The View” earlier this year that “Dissents are an opportunity for the justices who disagree with the majority to really describe their view of the law but also their concerns,” adding that “you hope that your view will prevail in the long run.”

Justice Jackson’s Invocation of a ‘Kafkaesque Nightmare’ Proves Too Extreme for Even Her Fellow Liberal Justices

Justice Jackson’s Invocation of a ‘Kafkaesque Nightmare’ Proves Too Extreme for Even Her Fellow Liberal Justices

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