Justice Ketanji Brown Jackson’s Declaration of Independence
The New Yorker (archive.ph)
By Ruth Marcus
2025-06-25 10:00:00GMT
Photograph by Jacquelyn Martin / AP
Being a liberal justice on a Supreme Court with a six-Justice conservative super-majority can be a miserable job. The opportunities for victory are scant; frustration is the baseline. There are two different models for dealing with this reality, approaches that can broadly be described as strategic and rhetorical. A strategic Justice can try to lure a conservative vote here and there, to cobble together an elusive majority and at least limit the damage. A rhetorical Justice can call out the conservatives for the sake of educating the current public and planting a flag for history. Or she—and the three liberals are all women—can tailor her response to the specific case.
Elena Kagan exemplifies this last, hybrid model. She is more than willing to let the majority have it when that is warranted; she also forges compromises with individual conservatives when it is possible to pick up their votes. The newest member of the Court, Ketanji Brown Jackson, is the epitome of the rhetorical Justice. Last week, as the Court prepared to finish its work for the year, Jackson issued a pair of dissents that signalled her despair over the Court’s trajectory, her refusal to sugarcoat its behavior, and her willingness to break with her liberal colleagues, Kagan and Sonia Sotomayor.
New Justices tend to hang back; Jackson, now in her third term, spoke up from the start. In her first eight oral arguments, she spoke eleven thousand words, twice as many as the next most loquacious Justice, Sotomayor. That tendency has persisted—The Hill found that Jackson spoke seventy-five thousand words this term, fifty per cent more than Sotomayor—and it isn’t the only measure of Jackson’s assertiveness. As the Times Supreme Court correspondent Adam Liptak noted at the conclusion of Jackson’s first term on the Court, Chief Justice John Roberts “did not write his first solo dissent in an argued case until 16 years into his tenure. Justice Jackson issued three such dissents in her first term.” Jackson’s conduct this term—in her work on the Court and her comments outside it—is not different so much as it is more so: more alarmed at the direction the Court and the country are heading, and more willing than ever to go it alone in expressing that distress.
Jackson’s independence from her liberal colleagues was on display in April, when the majority ruled that a challenge to President Trump’s use of the Alien Enemies Act to remove Venezuelan migrants to a Salvadoran prison had been brought in the wrong court. Sotomayor’s dissent, joined by Kagan, Jackson, and, in part, by the conservative Justice Amy Coney Barrett, was unsparing. She described the Trump Administration’s effort to “hustle” the Venezuelans out of the country before they could obtain due process as “an extraordinary threat to the rule of law.” The Court’s seeming indulgence of that behavior, she added, was “indefensible.” Jackson went further, in her own dissent. She assailed the majority’s “fly-by-night approach” of deciding cases on an emergency basis, without full briefing or oral argument—and compared the opinion with Korematsu v. United States, the discredited 1944 ruling upholding the internment of Japanese Americans. “At least when the Court went off base in the past, it left a record so posterity could see how it went wrong,” Jackson wrote. “With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves 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.”
Speaking last month at a judicial conference, Jackson seized the opportunity to call out “the elephant in the room, which is the relentless attacks and disregard and disparagement that judges around the country, and perhaps many of you, are now facing on a daily basis.” Two of her colleagues had already taken oblique aim at President Trump. In March, after Trump called for the impeachment of the district-court judge who handled the Alien Enemies Act case, the Chief Justice departed from his usual Olympian silence to note that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” Later that month, Sotomayor went a bit further. “One of the things that is troubling so many right now is many of the standards being changed right now were norms that governed officials into what was right and wrong,” Sotomayor cautioned in an appearance at Georgetown University Law Center. “Once norms are broken, then you are shaking some of the foundation of the rule of law.” Jackson, for her part, let it rip. “Across the nation, judges are facing increased threats of not only physical violence but also professional retaliation, just for doing our jobs,” she warned. “And the attacks are not random; they seem designed to intimidate those of us who serve in this critical capacity. The attacks are also not isolated incidents; that is, they impact more than just the individual judges who are being targeted. Rather, the threats and the harassment are attacks on our democracy—on our system of government. And they ultimately risk undermining our Constitution and the rule of law.”
The ferocity of Jackson’s dissents last week was remarkable in part because the opinions came in two relatively low-profile cases, not the kind of hot-button disputes that tend to bring out the adjectives. It was even more remarkable because, in both cases, one of her liberal colleagues was on the opposing side: Kagan, who tends to be more moderate than Jackson and Sotomayor, joined the majority. One case involved the important but technical question of whether the federal disability-rights law covers discrimination against retired workers in the benefits they receive. The majority opinion and the dissent each accused the other side of being driven by the desire to reach the outcome they wanted rather than by an interest in interpreting the law correctly—a charge that is about as nasty as things get at the high court. Gorsuch, writing for the majority, asserted that Jackson had resorted to examining the purpose and legislative history of the disability law because she found the method of “pure textualism”—looking only at the precise language of a statute—“insufficiently pliable to secure the result” she wanted. Jackson returned fire. “Too often, this Court closes its eyes to context, enactment history, and the legislature’s goals when assessing statutory meaning,” she wrote. “I cannot abide that narrow-minded approach. If a statute’s text does not provide a clear answer to a question, it is not our role to keep twisting and turning those words until self-confirmatory observations solidify our ‘first blush’ assumptions.”
Sotomayor joined that part of Jackson’s dissent, but she pointedly did not sign on to a lengthy footnote in which Jackson accused the majority of “an unfortunate misunderstanding of the judicial role,” arguing that the insistence on “pure textualism”—its refusal to consider Congress’s goals in enacting a statute—turns the interpretive task into a potent weapon for advancing judicial policy preferences.” Far from “being ‘insufficiently pliable,’ ” Jackson added, “pure textualism is incessantly malleable—that’s its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.”
If that exchange wasn’t heated enough, in the second case—which concerned whether gasoline companies, not just automakers, have standing to challenge California’s auto-emissions standards—Jackson all but accused the majority of being in the pocket of big business. The Justices allowed the case to proceed even though the Trump Administration had signalled that it will repeal the waiver letting California set its own emissions standards. The Court “does not explain why it is so eager to resolve this highly factbound, soon-to-be-moot dispute,” Jackson wrote. “For some, this silence will only harden their sense that the Court softens its certiorari standards”—how it decides whether to hear a case—“when evaluating petitions from moneyed interests.” She added, “This Court’s simultaneous aversion to hearing cases involving the potential vindication of the rights of less powerful litigants—workers, criminal defendants, and the condemned, among others—will further fortify that impression.” Jackson made a similar point about the Court’s finding: that gasoline companies had the right to sue. The majority’s “demonstrated concern for ensuring that the fuel industry’s ability to sue is recognized on these facts highlights a potential gap in the manner in which the Court treats the claims of plaintiffs pursuing profits versus those seeking to advance other objectives,” she wrote. Sotomayor, notably, dissented separately.
The end of a Supreme Court term is inevitably a moment for frayed tempers and jangled nerves. And Jackson is not the first Justice to sound such a bitter note. “The current Court is textualist only when being so suits it,” Kagan wrote three years ago, when the Court essentially invented a new rule to limit regulatory agencies. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” Dissenting in the Presidential-immunity case last year, Sotomayor lamented that the majority “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law,” concluding, “With fear for our democracy, I dissent.” (Jackson took some of the oomph out of Sotomayor’s opinion, which she and Kagan joined, by penning one of her own.)
Even so, the Jackson dissents—and there could be more to come before the summer recess—offer an unnerving window into a Court where Justices’ patience with one another is wearing thin. They are splintered, often angrily, along familiar ideological lines, and at the same time the diminished liberal wing, rather than being unified in opposition, often finds itself fractured. The institution that the country needs most right now is not a happy place, and the junior Justice may be the unhappiest of all.
The New Yorker (archive.ph)
By Ruth Marcus
2025-06-25 10:00:00GMT
Photograph by Jacquelyn Martin / AP
Being a liberal justice on a Supreme Court with a six-Justice conservative super-majority can be a miserable job. The opportunities for victory are scant; frustration is the baseline. There are two different models for dealing with this reality, approaches that can broadly be described as strategic and rhetorical. A strategic Justice can try to lure a conservative vote here and there, to cobble together an elusive majority and at least limit the damage. A rhetorical Justice can call out the conservatives for the sake of educating the current public and planting a flag for history. Or she—and the three liberals are all women—can tailor her response to the specific case.
Elena Kagan exemplifies this last, hybrid model. She is more than willing to let the majority have it when that is warranted; she also forges compromises with individual conservatives when it is possible to pick up their votes. The newest member of the Court, Ketanji Brown Jackson, is the epitome of the rhetorical Justice. Last week, as the Court prepared to finish its work for the year, Jackson issued a pair of dissents that signalled her despair over the Court’s trajectory, her refusal to sugarcoat its behavior, and her willingness to break with her liberal colleagues, Kagan and Sonia Sotomayor.
New Justices tend to hang back; Jackson, now in her third term, spoke up from the start. In her first eight oral arguments, she spoke eleven thousand words, twice as many as the next most loquacious Justice, Sotomayor. That tendency has persisted—The Hill found that Jackson spoke seventy-five thousand words this term, fifty per cent more than Sotomayor—and it isn’t the only measure of Jackson’s assertiveness. As the Times Supreme Court correspondent Adam Liptak noted at the conclusion of Jackson’s first term on the Court, Chief Justice John Roberts “did not write his first solo dissent in an argued case until 16 years into his tenure. Justice Jackson issued three such dissents in her first term.” Jackson’s conduct this term—in her work on the Court and her comments outside it—is not different so much as it is more so: more alarmed at the direction the Court and the country are heading, and more willing than ever to go it alone in expressing that distress.
Jackson’s independence from her liberal colleagues was on display in April, when the majority ruled that a challenge to President Trump’s use of the Alien Enemies Act to remove Venezuelan migrants to a Salvadoran prison had been brought in the wrong court. Sotomayor’s dissent, joined by Kagan, Jackson, and, in part, by the conservative Justice Amy Coney Barrett, was unsparing. She described the Trump Administration’s effort to “hustle” the Venezuelans out of the country before they could obtain due process as “an extraordinary threat to the rule of law.” The Court’s seeming indulgence of that behavior, she added, was “indefensible.” Jackson went further, in her own dissent. She assailed the majority’s “fly-by-night approach” of deciding cases on an emergency basis, without full briefing or oral argument—and compared the opinion with Korematsu v. United States, the discredited 1944 ruling upholding the internment of Japanese Americans. “At least when the Court went off base in the past, it left a record so posterity could see how it went wrong,” Jackson wrote. “With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves 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.”
Speaking last month at a judicial conference, Jackson seized the opportunity to call out “the elephant in the room, which is the relentless attacks and disregard and disparagement that judges around the country, and perhaps many of you, are now facing on a daily basis.” Two of her colleagues had already taken oblique aim at President Trump. In March, after Trump called for the impeachment of the district-court judge who handled the Alien Enemies Act case, the Chief Justice departed from his usual Olympian silence to note that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” Later that month, Sotomayor went a bit further. “One of the things that is troubling so many right now is many of the standards being changed right now were norms that governed officials into what was right and wrong,” Sotomayor cautioned in an appearance at Georgetown University Law Center. “Once norms are broken, then you are shaking some of the foundation of the rule of law.” Jackson, for her part, let it rip. “Across the nation, judges are facing increased threats of not only physical violence but also professional retaliation, just for doing our jobs,” she warned. “And the attacks are not random; they seem designed to intimidate those of us who serve in this critical capacity. The attacks are also not isolated incidents; that is, they impact more than just the individual judges who are being targeted. Rather, the threats and the harassment are attacks on our democracy—on our system of government. And they ultimately risk undermining our Constitution and the rule of law.”
The ferocity of Jackson’s dissents last week was remarkable in part because the opinions came in two relatively low-profile cases, not the kind of hot-button disputes that tend to bring out the adjectives. It was even more remarkable because, in both cases, one of her liberal colleagues was on the opposing side: Kagan, who tends to be more moderate than Jackson and Sotomayor, joined the majority. One case involved the important but technical question of whether the federal disability-rights law covers discrimination against retired workers in the benefits they receive. The majority opinion and the dissent each accused the other side of being driven by the desire to reach the outcome they wanted rather than by an interest in interpreting the law correctly—a charge that is about as nasty as things get at the high court. Gorsuch, writing for the majority, asserted that Jackson had resorted to examining the purpose and legislative history of the disability law because she found the method of “pure textualism”—looking only at the precise language of a statute—“insufficiently pliable to secure the result” she wanted. Jackson returned fire. “Too often, this Court closes its eyes to context, enactment history, and the legislature’s goals when assessing statutory meaning,” she wrote. “I cannot abide that narrow-minded approach. If a statute’s text does not provide a clear answer to a question, it is not our role to keep twisting and turning those words until self-confirmatory observations solidify our ‘first blush’ assumptions.”
Sotomayor joined that part of Jackson’s dissent, but she pointedly did not sign on to a lengthy footnote in which Jackson accused the majority of “an unfortunate misunderstanding of the judicial role,” arguing that the insistence on “pure textualism”—its refusal to consider Congress’s goals in enacting a statute—turns the interpretive task into a potent weapon for advancing judicial policy preferences.” Far from “being ‘insufficiently pliable,’ ” Jackson added, “pure textualism is incessantly malleable—that’s its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.”
If that exchange wasn’t heated enough, in the second case—which concerned whether gasoline companies, not just automakers, have standing to challenge California’s auto-emissions standards—Jackson all but accused the majority of being in the pocket of big business. The Justices allowed the case to proceed even though the Trump Administration had signalled that it will repeal the waiver letting California set its own emissions standards. The Court “does not explain why it is so eager to resolve this highly factbound, soon-to-be-moot dispute,” Jackson wrote. “For some, this silence will only harden their sense that the Court softens its certiorari standards”—how it decides whether to hear a case—“when evaluating petitions from moneyed interests.” She added, “This Court’s simultaneous aversion to hearing cases involving the potential vindication of the rights of less powerful litigants—workers, criminal defendants, and the condemned, among others—will further fortify that impression.” Jackson made a similar point about the Court’s finding: that gasoline companies had the right to sue. The majority’s “demonstrated concern for ensuring that the fuel industry’s ability to sue is recognized on these facts highlights a potential gap in the manner in which the Court treats the claims of plaintiffs pursuing profits versus those seeking to advance other objectives,” she wrote. Sotomayor, notably, dissented separately.
The end of a Supreme Court term is inevitably a moment for frayed tempers and jangled nerves. And Jackson is not the first Justice to sound such a bitter note. “The current Court is textualist only when being so suits it,” Kagan wrote three years ago, when the Court essentially invented a new rule to limit regulatory agencies. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” Dissenting in the Presidential-immunity case last year, Sotomayor lamented that the majority “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law,” concluding, “With fear for our democracy, I dissent.” (Jackson took some of the oomph out of Sotomayor’s opinion, which she and Kagan joined, by penning one of her own.)
Even so, the Jackson dissents—and there could be more to come before the summer recess—offer an unnerving window into a Court where Justices’ patience with one another is wearing thin. They are splintered, often angrily, along familiar ideological lines, and at the same time the diminished liberal wing, rather than being unified in opposition, often finds itself fractured. The institution that the country needs most right now is not a happy place, and the junior Justice may be the unhappiest of all.
