By Matt Ford\The New Republic
Photos: Wikimedia Commons
Earlier this year, I noted that it often takes a few years for new members of the Supreme Court to get acclimated to the job. Justice Ketanji Brown Jackson is moving ahead of schedule. With the end of the term last month, she appears to have found her place on the court—as a straightforward and unambiguous critic of the conservative majority’s ideological project.
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.
Her dissent in Trump v. CASA last week illustrated her approach. The 6–3 majority forbade lower courts from issuing “nationwide injunctions,” a tool to constrain allegedly illegal policies by presidents of both parties, especially over the past decade.
The ruling allowed the White House to partially move forward with its effort to dismantle birthright citizenship, something that is explicitly forbidden by the Fourteenth Amendment’s citizenship clause.
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.
Jackson, who joined Sotomayor’s dissent, also wrote her own. “I write separately to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” she wrote. From there, she dispensed with some of the typical rhetorical norms that the justices use when speaking ex cathedra.
“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. READ MORE…
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