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Consider the Dissenter: Justice Jackson’s Troubled Close to the 2024 Term
Ketanji Brown Jackson is a justice seeking to establish her legacy. By some lights, her mere presence as the first black women on the Supreme Court is already a legacy-cementing fact. To her credit, she understands that status alone is not enough, and thus she has been enormously active as a questioner and opinion writer during her three-year tenure on the Court. But it is doubtful that her prolific and eccentric performance at the close of the 2024 term has helped her legacy.
First, a brief survey of her role this term. According to statistics from SCOTUSblog and Empirical SCOTUS, Jackson was in the majority less than any justice in the 2024 term (72%). That percentage drops to 51% in nonunanimous cases and 45% in “closely divided cases,” both the lowest of any justice. Those figures place her on the periphery of the current Court.
During oral arguments, however, she dwarfs her colleagues in the number of words spoken and the number of minutes used. She writes the shortest opinions, averaging 3,400 words. But that might be attributable in part to the fact that as the most junior justice, she is assigned majority opinions in the least controversial cases. Still, she creates additional opportunities to put her thoughts into writing. She wrote more dissents than any member of the Court (10), and when concurrences are factored in, she wrote 24 total opinions this term, trailing only Justice Clarence Thomas (29).
Probably Jackson’s most significant majority opinion this term was Ames v. Ohio Dept. of Youth Services, where a unanimous Court overturned lower court rulings that forced “majority group” members to satisfy a heightened evidentiary standard to prove claims of workplace discrimination. Jackson dispatched Ohio’s contrary arguments in a brisk nine pages.
It is, however, Jackson’s dissents that have garnered the most critical attention. At the risk of missing important material, let us confine ourselves to a few among the notables.
Consider first her dissent in Medina v. Planned Parenthood, which Justices Elena Kagan and Sonia Sotomayor joined. If Jackson is looking to carve out her own jurisprudential niche, then perhaps her greatest sin here is her unoriginality. The case concerned South Carolina’s decision to exclude Planned Parenthood from the state’s approved Medicaid providers. The question before the Court was whether the federal Medicaid program allowed individual patients to sue the state over that decision. The majority said “no,” and the liberals disagreed. The irony was that the case most cited by the majority to support its reasoning was Health and Hospital Corp. of Marion County v. Talevksi, a 2023 decision by (checks notes) … Jackson.
Of course, it was not enough for Jackson, et al. to disagree legally—the matter had to become a moral contest. The right of individuals to sue states traces back to a Reconstruction-Era statute now known as §1983. So, as if deciding that abortion alone did not make the stakes of the case high enough, Jackson decided to compare South Carolina’s present resistance to abortion to the state’s past denial of black equality. “A century and a half later,” she says, “the project of stymying one of the country’s great civil rights laws continues.” In other words, old unreconstructed South Carolina is just up to its nullifying tricks again, trying to deny people fundamental rights like access to industrial-scale infanticide. It is a tired trope of the modern left to make a new civil rights movement out of every issue of autonomy, and it is a move that Jackson apparently could not resist.
Jackson delivered another mystifying dissent in Diamond Energy v. Environmental Protection Agency, a fuel industry challenge to California’s ability to impose more restrictive emissions standards than any other state. The question before the Court concerned only the threshold issue of standing, which requires plaintiffs to identify a concrete, redressable injury before asking a court to intervene. A seven-justice majority agreed that California’s push for electric vehicles would harm the fuel industry by decreasing sales.
Yet Jackson resisted that conclusion. Despite the facially reasonable connection between California’s regulations and decreased fuel sales, in a solo dissent, Jackson accused her colleagues of failing to approach the standing question “evenhandedly,” giving rise to the “the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.”
Now, regarding inconsistency in the Court’s standing jurisprudence, Jackson has a point. Justice Samuel Alito made a similar point in 2023 when the Court (including Jackson) held that Texas, for all the burdens of illegal immigration that it bore, had no standing to challenge President Joe Biden’s effective nonenforcement of the nation’s immigration laws. Here, however, the Court did what it should have done in that case, i.e., acknowledge that injury in fact creates standing.
Jackson seemed to think that was inadequate because she was unfavorably disposed toward the “moneyed interests” bringing the case. That too is a kind of bias. At times she suggested that the controversy between the fuel industry and California was illusory because the Trump administration might at some future date withdraw the exemption that permits California’s unique standards. Begrudgingly, she conceded that the policy remains in place, and it was common sense to conclude that it is affecting fuel sales. But in her view, not too much weight could be placed on that state of affairs because “what counts as a ‘commonsense’ inference to the Justices on this Court may not be viewed as such by others.”
Who might these common-sense-impaired others be? The New York Times, apparently, which was her primary citation for the worry “that the fuel industry’s gain comes at a reputational cost for this Court, which is already viewed by many as being overly sympathetic to corporate interests.” Seldom has a fear of niche newsroom opinions done so much work in judicial reasoning.
But if that was not convincing, Jackson had another emotional appeal: the civil rights movement again. What has that to do with anything? Well, Jackson found it “striking” how the majority found standing for the fuel industry “especially when compared to the Court’s approach to Article III standing in cases involving civil rights,” where the Court supposedly makes things tougher. There you have it. Another culpable judicial failure to support the meta-value of equality. But when your harangues over injustice have lost fellow liberal stalwart Kagan, then perhaps you protest too much.
Last is another solo Jackson dissent in Trump v. CASA, Inc., the birth-right-citizenship case that at this stage of the litigation asked only whether lower courts had the power to impose “universal” or “nationwide” injunctions that barred the president from enforcing his policies anywhere in the country. Six justices, led by Amy Coney Barrett, concluded that the late-developing practice of universal injunctions was inconsistent with the scope of the judiciary’s historically understood power to give relief only to the parties before the court.
Again, Jackson did not simply disagree. Instead, she summoned up a level of melodrama better suited to her side gig on the stage and declared the majority opinion “an existential threat to the rule of law.” The emotional register of her dissent verges on the theatrical. She dismisses the majority’s concern for historic limits on judicial power as “mind-numbingly technical,” “legalese,” and a “smokescreen” all in one paragraph. The end of a judicial practice dating to the 1960s she attributes to her colleagues’ “culture of disdain” for the law, which will put our Constitution and “our beloved constitutional Republic” into “grave jeopardy.” She then closed by dissenting “with deep disillusionment.” Perhaps she has plans to convert that dissent into a Broadway libretto.
As critiques go, it would be hard to outdo Barrett’s. Jackson, she explains, “decries an imperial Executive while embracing an imperial Judiciary.” Her basis for doing so is “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.” Although the president must follow the law, contra Jackson, “the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.”
Critiques of Jackson’s overwrought CASA performance have come from places other than her conservative colleagues. Even highly regarded liberal legal scholars have said that Jackson’s forecasts of constitutional doom are unwarranted not least because the practice of universal injunctions has long enabled “politically motivated litigants and judges [to] short-circuit a process in which multiple judges address hard legal questions.”
Of course, Jackson is not wrong when she invokes the architects of our Constitution to show that courts have an important role to play in checking the political branches. But as conservatives have had to learn in some recent separation-of-powers cases, resort to first principles can take you only so far in answering questions about specific constitutional restraints on another branch. History must play its role too.
Jackson has not been a judge, let alone a Supreme Court Justice, very long. At age 54, she has a lot of time to adapt to her role and cultivate a judicial philosophy. She has at times shown an ability to treat subjects with greater nuance and insight than her older colleagues. Her performance in the NetChoice cases last term comes to mind. Going forward, one would hope to see more of that approach and less of the dramatics on which the curtains of the 2024 term closed.
The post Consider the Dissenter: Justice Jackson’s Troubled Close to the 2024 Term appeared first on The Daily Signal.
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