Often In Dissent, Sometimes Alone, Jackson Lays Out Progressive Vision For The Court

WASHINGTON, D.C. - MAY 20: Supreme Court Justice Ketanji Brown Jackson (Amanda Andrade-Rhoades/For The Washington Post via Getty Images)
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As they reshape American life, the conservative Supreme Court justices are working to realize the vision developed by the right-wing legal world they came from: weak regulatory agencies, an omnipotent executive, a flexible enough rule of law to imbue the courts (particularly theirs) with awesome power. 

They employ (and create) a variety of tools to give their rulings a patina of legitimacy. Originalism is paramount. They’ve conjured up the nondelegation and major questions “doctrines” to help fill the gaps. 

The liberals have long been relegated to writing stridently in dissent, picking apart their conservative colleagues’ cherrypicked rulings. But in the years since the majority has charged hard to the right, liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson have increasingly and sometimes furiously started to outline a competing vision of America. And this term, in many of the banner cases, newcomer Jackson led the charge.

In her sophomore year on the bench, Jackson hasn’t shied away from writing alone on some of the term’s biggest cases. She occasionally pushed beyond the often joint opinions of Kagan and Sotomayor both to intensify their critiques and, importantly, to situate them in a greater philosophical framework. 

That project has been, to this point, anemic on the political and legal left, to the movement’s detriment. “The Republican Party and especially Trump folks and organizations like Heritage are very good at mobilizing their base and their ‘intellectual movement’ around questions of constitutional structure, around the importance of, say, presidential power or judicial supremacy,” Blake Emerson, professor of law and political science at UCLA, told TPM in a recent interview following the Court’s immunity ruling. “There is no liberal counter to that way of thinking and talking that makes the case why it’s important to have rule of law, regulatory protections, not to give the President a blank check while respecting the President’s legitimate constitutional role.”

The three liberals — and, in particular, Jackson — are starting to fill some of that silence. 

The Vision

In her solo dissent from the Donald Trump immunity case, where the conservatives granted presidents sweeping protections from criminal prosecution, Jackson situated the majority ruling as an ahistorical break with the individual accountability model that had long undergirded our criminal justice system (in theory).

“Our Government has long functioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both legal and factual, tailored to their particular circumstances, whether they be Government officials or ordinary citizens,” she wrote. 

She outlined a counterargument to the Trumpist, and thus Republican, vision of an untouchable, imperial presidency and super-powerful Supreme Court unchecked by a flaccid Congress and lording over increasingly hobbled federal agencies. It’s a structure in which power pools in the least democratic corners of our governmental structure, insulated from popular will.

In Jackson’s vision of the rule of law, defendants, including former presidents, are given a gamut of protections, both before and during their trials, able to challenge prosecutions that are wrongly brought and to mount a robust defense of their actions. The Court’s new theory of immunity is an affront to such a system, where the most powerful person, the one best equipped to avail himself of these protections, is shielded from being prosecuted even for egregious crimes committed in plain sight.

Our criminal justice system, often punitive and discriminatory, is already a far cry from the dignified and just model she described — and the Court’s immunity decision only pushed that ideal further into the realms of fantasy. But, confined to the dissent, she formulated an overarching counterargument that those on the left have neglected to make outside of myopic cases or individual policy issues.

“It is a core tenet of our democracy that the People are the sovereign, and the Rule of Law is our first and final security,” she wrote.

She took a similarly philosophical view on United States v. Rahimi, where all but Justice Clarence Thomas ruled that domestic abusers could be stripped of their gun rights. 

Where Kagan and Sotomayor cheered the narrowing of Bruen’s demand for historical analogues to uphold gun restrictions and briefly voiced their misgivings about the Court’s marriage to historical precedent more broadly, Jackson went further. 

She countered the conservative fixation on originalist “tradition” with a series of questions pointing out its obvious weaknesses — including that laws at or around the founding were written to protect a vanishingly small slice of Americans. 

“Who is protected by the Second Amendment, from a historical perspective? To what conduct does the Second Amendment’s plain text apply? To what historical era (or eras) should courts look to divine a historical tradition of gun regulation? How many analogues add up to a tradition? Must there be evidence that those analogues were enforced or subject to judicial scrutiny? How much support can nonstatutory sources lend?” She asked. “I could go on — as others have.” 

She again made the case for the rule of law, arguing that this inconsistent and arbitrary “originalism” has forced judges to don the ill-fitting hats of historians, leading to a patchwork of contradictory opinions. 

“No one seems to question that ‘[h]istory has a role to play in Second Amendment analysis.’” she wrote. “But, per Bruen, courts evaluating a Second Amendment challenge must consider history to the exclusion of all else.”

In her vision, history would be a factor, and not the sole basis, for judicial review of gun regulations. Legislatures would know how they can regulate firearms within constitutional bounds. And individual judges wouldn’t sift through historical episodes to get to their chosen end result.

Unbalancing Power

Jackson also earned the distinction of being perhaps the most consistent justice in her decrying of the conservatives’ project to unbalance the branches of government, to the detriment of both Congress and the regulatory agencies in the executive branch. This was a leading theme for all of the liberals, given the gargantuan strides the right-wing majority took this term in shifting power away from federal agencies to itself. 

But Jackson wrote on a couple major cases where the other liberals kept silent. 

She was the only one to write outside of the majority in Starbucks Corp. v. McKinney, partially dissenting from an otherwise unanimous decision that gave the coffee behemoth a modest victory in its efforts to quash unionization efforts at its stores. It raised the bar for the National Labor Relations Board, an independent federal agency, to get its preliminary injunction requests granted by district courts — a step meant to immediately shield workers from their companies’ anti-union crackdowns, rather than delivering relief only after the months- or years-long duration of a case. 

She characterized the decision as yet another judicial power grab, another case where the Court blessed judicial discretion over the agency’s, despite Congress’ clear intent to tilt the scales the other way.

“I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process,” she wrote. 

And in this specific case, Congress insisted on empowering the board because courts have such a dismal record of protecting workers’ rights: “To put it bluntly, courts exercising their equitable discretion amidst labor disputes today do so against the backdrop of an ignominious history of abuse,” she added. 

She wrote alone, without the support of the other liberals, to underscore that the labor dispute was actually just the latest in an unmistakable trend of the right’s long-pursued mission to defang the administrative state.

She did similar work in Moore v. United States, a right-wing effort to preemptively head off a wealth tax, and Moyle v. United States, a case pitting state abortion bans against federal emergency room requirements. 

In Moore she was the only liberal to write, and used her concurrence to warn the Court off of interfering with future (impliedly, wealth) taxes, and leave it to voters to express their approval or dismay at the ballot box. In Moyle, she took a hammer to her colleagues, writing that, rather than punting the case, the Court should have decided it now, as it allows states to “nullify” Congress’ judgment — a clear violation of the Supremacy Clause. 

All of these opinions flow in the same direction: In her vision, Congress is vital and its delegations of power to the executive branch deserving of utmost respect and protection. Judges are humble, loath to insert themselves as “uber-legislators.” Agencies, imbued with power by Congress, get to exercise it. 

These positions aren’t novel, but the left, outside of academia, has still failed to articulate them as the foundation of its policy goals, the ideology from which everything else (abortion rights, environmental and worker protections, progressive tax schemes) flows. With her solo opinions, Jackson is building up this progressive vision of the rule of law, of the balance of power, of judicial restraint and congressional vigor. 

She often writes in dissent and sometimes writes alone; but for any liberal on the bench, this game is a long one and the construction of a left-wing counterargument to the predominating right-wing theory of law and governance is a worthwhile cause in the meantime. 

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Notable Replies

  1. 13 appellate courts 13 supremes.

    @txlawyer can tell why I’m wrong. And also raise the ante please.

  2. KBJ will serve as an excellent cornerstone for building a new SCOTUS to replace the current corrupted version constructed by oligarchs and supported by a fascist cult. We definitely need to add more and younger justices with the integrity and constitutional knowledge that she unfailingly displays.

    Well done article, Kate, and as a bonus the comments section was immediately available through the front door. Yay!

  3. Reading Justice Jackson’s dissents is like breathing cool fresh air, both uplifting and brilliant at the same time.

  4. Future Chief Justice material. How does “the Brown-Jackson court” sound?

    Now how do we get there? Justice Dept. actually responding to the Senate’s referral of Thomas’s obvious tax evasion crimes would be a good start, especially now that SCOTUS has said that corruptly using the Justice Dept for political purposes is an A-OK unreviewable official act.

  5. FYI
    Stephanopoulos apologizes for saying Biden can’t serve another term (msn.com)
    Driving the news: TMZ released a video Tuesday appearing to show a pedestrian on a New York City street asking Stephanopoulos, “Do you think Biden should step down?”

    • “I don’t think he can serve four more years,” Stephanopoulos responds.
    • The clip quickly gained traction on social media.

    What they’re saying: “Earlier today I responded to a passerby. I shouldn’t have,” Stephanopoulos said in a statement Tuesday night response to the video’s release, ABC News reported.

    • In its own statement, ABC News said that Stephanopoulos had “expressed his own point of view and not the position of ABC News.”

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