Jackson’s recent dissents show a growing willingness to criticize her colleagues and the Trump administration in both legal and nonlegal terms—a departure from the court’s typical unwritten norms on how the justices interact with each other in their formal writings. She is not merely arguing that her colleagues are wrong about the legal questions before them but that their goals and efforts are not exactly judicial in nature.
Justice Sonia Sotomayor wrote the main dissent for the court’s liberals, where she condemned her colleagues for “playing along” with the Trump administration’s procedural gamesmanship and warned that “no right is safe in the new legal regime the court creates.” Her 44-page dissent was a thorough, holistic evaluation of the legal flaws in the majority’s reasoning and the dangerous outcomes it could produce.
“It is important to recognize that the Executive’s bid to vanquish so-called ‘universal injunctions’ is, at bottom, a request for this court’s permission to engage in unlawful behavior,” she wrote in her opening. While Sotomayor addressed this danger in more abstract terms, Jackson made clearer that the threat is the Trump administration itself, and that its lawlessness is by design.
Jackson did not dwell at length on the precise legal arguments and deferred to Sotomayor’s work instead. “My objective is to expose the core conceptual fallacy underlying the majority’s reasoning, which, to me, also tends to demonstrate why, and how, today’s ruling threatens the rule of law,” she explained. That fallacy, she argued, was using the English court’s powers as a reference point for the American judiciary’s powers.
Describing this approach as a “conceptual fallacy” is a rebuke of originalism, where the court’s jurists often use medieval and early modern English laws and practices to divine the “original public meaning” of the Constitution. This practice can have its interpretive uses from time to time, but it is most often used by the court’s conservative justices as a “smokescreen,” as Jackson aptly put it, while channeling cases toward their preferred outcomes.
Jackson’s pointed critiques of the conservatives’ preferred interpretive methods have drawn similarly sharp responses before. Earlier this year in Stanley v. City of Sanford, the justices ruled against a Florida firefighter who had argued that the city violated the Americans with Disabilities Act’s provision on workplace discrimination by offering separate health plans depending on whether the firefighter retired based on a disability or not.
Jackson disagreed with the court’s approach. “No one seriously disputes that the [ADA] prohibits disability discrimination with respect to retirement benefits,” she wrote in her dissent. “Unfortunately, however, by viewing this case through the distorted lens of pure textualism, the Court misperceives those protections today.” She instead focused on the “clear design of the ADA” and argued that the court’s ruling “plainly counteracts what Congress meant to—and did—accomplish.”
He observed that, as the court “has emphasized many times, what Congress (possibly) expected matters much less than what it (certainly) enacted.” Jackson, who fired back in a footnote, said that his “insufficiently pliable” remark—which implied that she was bending the law to seek a preferred outcome—“stems from an unfortunate misunderstanding of the judicial role.”
Most justices would have probably stopped there, but Jackson went further to critique textualism as a whole. “By ‘finding’ answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as ‘textual’ inevitabilities,” she explained. “So, really, far from being ‘insufficiently pliable,’ I think 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.”
To that end, it more closely resembles the scorn that the court’s conservative justices once heaped upon the court’s liberal and moderate majorities. Justices like Antonin Scalia and Clarence Thomas used to argue frequently in defeat that the majority was not just wrong as a matter of legal reasoning, but that its entire jurisprudence was a vehicle for their personal policy preferences on abortion, LGBT rights, criminal justice, and so on. Now the worm has turned.
Jackson’s dissents show less scorn for her individual colleagues and more scorn for their ideological project as a whole. In a case earlier this term where the court went out of its way to strike down California’s vehicle-emissions standards, Jackson expressed concern in her dissent that the majority’s decision “comes at a reputational cost for this Court, which is already viewed by many as being overly sympathetic to corporate interests.”
In March, for example, a federal district court blocked the Trump administration from using the Alien Enemies Act to send Venezuelan nationals whom it accused of having gang affiliations to a prison in El Salvador, where they face indefinite detention. The Supreme Court’s conservative majority, minus Barrett, ruled in April that the lower court’s temporary restraining order was invalid and required the detainees to file habeas petitions instead.
“I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner,” Jackson wrote in her separate dissent. “At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944).”
“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,” she concluded. “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.” This was not, strictly speaking, a legal argument. It was a condemnation of the majority’s overall approach to the law, couched in moral and democratic terms.
In the long run, Jackson may be writing for the day when a liberal majority on the high court is able to restore the Constitution—and especially the Fourteenth Amendment—as it once existed. But there is a palpable sense of urgency to her dissents as well. As the Trump administration bends the constitutional order to his authoritarian whims, it is not enough to appeal to the “brooding spirit of the law,” as one justice famously once said about the role of dissents in the court’s work. Jackson apparently does not think the country can wait that long.
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