Below is my column in the New York Post on the controversial dissenting opinion of Justice Ketanji Brown Jackson in the injunction ruling in Trump v. CASA on Friday. The opinion seemed to fan the flames of “democracy is dying” claims of protesters, suggesting that basic limits on injunctive relief could result in the collapse of our core institutions. It was a hyperventilated opinion better suited to a cable program than a Court opinion. The response from Justice Amy Coney Barrett was a virtual pile driver of a rebuke. What was notable is that a majority of the justices signed off on the takedown. It could indicate a certain exasperation with histrionics coming from the left of the Court in recent years.
Here is the column:
For most citizens, the release of Supreme Court opinions is about as exciting as watching paint dry, particularly in a case dealing with the limits of district courts in issuing universal injunctions.
Yet Friday’s Trump v. CASA case included a virtual slugfest between Justice Amy Coney Barrett and Justice Ketanji Brown Jackson.
The decision was one of the biggest of the term. The Court moved to free the Administration from an onslaught of orders from district judges seeking to block the President in areas ranging from the downsizing of government to immigration.
However, it was the departure of the normally staid court analysis that attracted the most attention.
The tenor of Jackson’s language shocked not just many court watchers, but her colleagues. It seemed ripped from the signs carried just a couple of weeks earlier in the “No Kings” protests.
The Court often deals with issues that deeply divide the nation. Yet it tends to calm the waters by engaging in measured, reasoned analysis — showing the nation that these are matters upon which people can have good-faith disagreements.
But that culture of civility and mutual respect has been under attack in recent years.
Not long ago, the Court was rocked by the leaking of the draft of the Dobbs decision overturning Roe v. Wade. That was followed by furious protests against conservative justices at their homes and an attempted assassination of Justice Brett Kavanaugh.
There was also a change in the tenor of the exchanges in oral argument and opinions between the justices.
Recently, during the argument over the use of national injunctions in May, Chief Justice John Roberts was clearly fed up with Justice Sotomayor interrupting government counsel with pointed questions and commentary, finally asking Sotomayor, “Will you please let us hear his answer?”
This hyperbole seemed to border on hysteria in the Jackson dissent. The most junior justice effectively accused her colleagues of being toadies for tyranny.
It proved too much for the majority, which pushed back on the overwrought rhetoric.
While the language may seem understated in comparison to what we regularly hear in Congress, it was the equivalent of a virtual cage match for the Court.
Some of us have argued that our system is working just as designed, particularly as these issues work through the courts. The courts have ruled for and against this Administration as they struggle with the difficult lines of authority between the branches.
Liberals who claim “democracy is dying” seem to view democracy as getting what you want when you want it.
It was, therefore, distressing to see Jackson picking up on the “No Kings” theme, warning about drifting toward “a rule-of-kings governing system”
She said that limiting the power of individual judges to freeze the entire federal government was “enabling our collective demise. At the very least, I lament that the majority is so caught up in minutiae of the Government’s self-serving, finger-pointing arguments that it misses the plot.”
The “minutiae” dismissed by Jackson happen to be the statutory and constitutional authority of federal courts. It is the minutiae that distinguish the rule of law from mere judicial impulse.
Justice Barrett clearly had had enough with the self-aggrandizing rhetoric. She delivered a haymaker in writing that “JUSTICE JACKSON would do well to heed her own admonition: “[E]veryone, from the President on down, is bound by law.” Ibid. That goes for judges too.”
She added, “We will not dwell on JUSTICE JACKSON’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.”
In other words, the danger to democracy is found in judges acting like kings. Barrett explained to her three liberal colleagues that “when a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
The last term has laid bare some of the chilling jurisprudence of Justice Jackson, including a certain exasperation with having to closely follow the text of laws. (In an earlier dissent this term, Jackson lashed out against the limits of textualism and argued for courts to free themselves from the confines — or shall we say the “minutiae” — of statutory language). In this opinion, Barrett slams Jackson for pursuing other diversions “because analyzing the governing statute involves boring ‘legalese.'” Again, what Jackson refers to as “legalese” is the heart of the judicial function in constraining courts under Article III.
Untethered by statutory or constitutional text, it allows the courts to float free from the limits of the Constitution.
For many, that is not an escape into minutiae but madness without clear lines for judicial power.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the best-selling author of “The Indispensable Right.”
N.B.:this column is slightly longer than the one that appeared in the NY Post.
What a paramount observation: “JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.” N O W , can we determine who leaked the Roe v. Wade opinion.
Jackson is right. What Turley forgets is that Justice Jackson is also the only one with experience as a defense lawyer. Her perspective isn’t tainted by the Federal Society’s originalism and textualism which is only used when it’s convenient.
What the majority did was give the executive branch the ability to deem the Constitution a dead letter law. Turley, unsurprisingly, is enabling it. He wasn’t bothered by these injunctions when republican appointed judges issued them. The only reason we have so many more now is because we have a president ruling by EO while Congress does nothing. Ironically when President Obama did it, Turley and republicans cried foul.
In his glee chastising Justice Jackson Turley missed the real problem. The majority just gave the executive the ability to be lawless and abandon the notion of checks and balances.
Her opinion was an emotional tirade divorced from any facts and legal precedent. What we saw yesterday was a group of employees who have hit the limit with their new DEI worker, who is screamingly and obviously unqualified for the job.
She’s not a defense attorney anymore dumdum, maybe she ought to look at her job listing to figure that out.
Are you trying to prove yourself as big an ignoramus as jackson?
Look who’s talking. Your so-called comments here are the most devoid of anything resembling intelligence.
So, you have proven, yet again, that you have all the requisite offensiveness of the best prog/left troll. Would you like to try for actual intelligent comments or is that bar just too high for you?
Was your lobotomy painful?
“Jackson is right.”
And yet you gave no explanation of what she is “right” about. And no argument defending why she is “right.”
Welcome to Judge Jackson’s school of hand-waving.
Democrats love their jazz hands, just check out Tom Waltz or whatever his name was (he’s just not worth the time to check the spelling)
or gavin newsome, the master of hand gestures.
Damn Gavin to hell, his whole damn state, the other damn states, our damn lives, his damn lies: https://californiaglobe.com/articles/california-gov-gavin-newsoms-odd-damn-video-interview/
Some observations, and some questions. First, considering some apparently less-than-stellar (from a Constitutionally conservative POV) opinions from Coney Barrett recently, I was surprised to see her take the lead in smacking down Brown Jackson. She also lately has seemed to lean back toward the conservatism that she was reputed to exemplify at the time of her nomination. Is she still finding her way as a SCOTUS justice, or were some of the previous criticisms of her opinions somewhat overblown? If the conservative majority (which would need to include Roberts, of course) should begin consistently sidelining Brown Jackson as a result of what to me should be classified as her “conduct unbecoming”, what would be the practical effect (if any) on the routine operations on the Court? If Coney Barrett’s smack-down results in a total 6 – 3 polarization, what practical effect could that have? I’m sure that Roberts’ role as Chief demands that he be the peacemaker in situations of this nature, but based on past performance, I seriously doubt that he has the spine to do that. He might be a reluctant conservative, but I think he will choose sides based on which he perceives to be most likely to prevail, rather than put himself on the line to actually resolve a potential ongoing dispute of this magnitude.
I suspect that ACB is still following Roberts’ lead.
Didn’t Trump call ACB out recently? Maybe she took the hint and straightened up.
I’m unconvinced about that. Trump’s “call outs” seem to tend to be quite overweight on bluster. For anyone to “take hints” from those would require sifting through his rhetoric and evaluate any reasonable and legitimate criticism at its core (to his credit, there usually is at least some of that buried within). Maybe Coney Barrett is perceptive enough to be doing that, maybe not. I doubt very much if she or any other SCOTUS justice (with the possible exception of Roberts the Lightweight) is actually responding to the bluster, considering that their appointments are for life.
I have argued for a few years now that inflation will go down, the Ukraine war will end, we will get men out of women’s sports and we will close the border, but the 10-15 million illegals will be with us forever and that is the one thing that Biden did that won’t be undone. But I was remiss in not including the malignancy of Justice Jackson’s Court decisions and dissents as another Biden action that will be with us for decades.
It is amazing how much damage Joe Biden did to the country in only 4 years. Going back as far as the 1980s we all knew, yes, including even Democrats, that Joe Biden was a buffoon, a fabulist, a plagiarist, a narcissist and a corrupt moron, and the damage he has done is a good example of why he was crushed in his runs for president three times. It took the insanity of 2020, Covid and the left’s TDS along with their win no matter what it does to the country attitude to push Joe Biden into the WH.
You have argued? You can’t formulate a coherent sentence.
Great response…for an idiot.
I’m convinced that this “anonymous” is unable to reason. There are two versions of anon. One is a patriot and this cretin.
I count quite a number of coherent sentences in his post. Maybe your reading comprehension isn’t up to snuff? May I recommend Hooked on Phonics?
I agree with your analysis of the damage, but it wasn’t mostly of biden’s doing. That is what is becoming frighteningly apparent. This should be the number 1 concern of our current government – finding out who controlled the autopen.
Another woman should never be appointed in the future!
As a woman, I agree. There are few woman who can overcome their emotional response to a situation and allow logic, alone, to guide their decisions.
In fact, I’m doubting the wisdom of allowing us the votes when I’ve observed so many “Karens” and weepy, nosey, do-gooders making life impossible outside the confines of your own home.
I’m sure Sotomayor appreciates Jackson, KBJ’S appointment elevated her from being the dumbest in the room. Jackson’s appointment was deliberately and specifically identified by Biden as a DEI hire, in an oafish attempt to placate the BLM faction. The result speaks for itself.
Jackson is not stupid, her appointment is intended to upend the Constitution. The dumbest person in the room, is you for not knowing that.
“Jackson is not stupid”
She sure talks and writes like it.
I do agree that the whole point of her appointment was to put another anti-Constitutional nutjob on the court. The question is if she’s qualified for even that much.
DEI Justice Jackson. Very low judicial IQ.
Johnni, is that really your best? Is “DEI” stuck in your brain?
When the shoe fits, wear it. You’re not arguing that she’s qualified are you? Even brain dead Biden was upfront about picking her due to DEI genuflection.
Perhaps President Trump can begin to exert public pressure on these 3 worthless broads to step down. He can then nominate solid conservative, originalist judges, women or men. He has a sterling record of selecting the best qualified people. That alone would cement the Constitution to it’s rightful place.
Interesting
NBC News Butchers Statistics, Suggests There’s an Acceptable Level of Murders by Illegal Immigrants
By Brad Slager
Was the author named “George” by chance? We know he’s down with illegals murdering Americans.
He is posting, but not on this, just yet
It appears the U.S. Supreme Court may be only a few terms away from adopting the coarse f* language of the streets in its deliberations. Dissents could devolve into emotional tirades, and majority opinions may soon be laced with profanity. At this rate, new clerks might be selected not for their legal scholarship, but for their activism credentials—reducing the value of rigorous legal training to a mere afterthought.
It stands to reason that someone unable to define what a woman is, might have difficulty understanding what the U.S. Constitution is. The latter permits only one court – the Supreme Court – to have universal authority over what the Constitution requires when it comes to laws, statutes, and executive orders. District Courts were created by Congress but not for the purpose of usurping the authority of the Supreme Court. Yesterday, in a 6-3 decision, the Supreme Court closed for good the Judge Shop. I think Justice Jackson gets it but just doesn’t want to admit it to her fans. Maybe for her it’s a “woman thing.” ACB offered a Churchillian appraisal to explain the wisdom of the majority.
A “woman thing” from someone who doesn’t know what a woman is.
Anon: Ha, you’re correct. Maybe ACB should have brought that up.
Why is any Federal Court entertaining litigation on the Birthplace Citizenship controversy when a bill is pending in Congress (HR 569) that completely eliminates all the ambiguities in “subject to the jurisdiction thereof”? How is it not a Separation of Powers violation to allow policy-seeking plaintiffs to use the Courts when the Constitution clearly gives authority to Congress to decide Nationality (Citizenship) Law (Article I, Section 8)?
Only after HR 569 is passed and signed should any Court allow its Constitutionality to be litigated. I believe there are 6 votes for this Separation of Powers deference. And, if Repubs are smart, they’ll get HR 569 over the finish line, making the E. O. case moot.
“a bill is pending in Congress (HR 569) that completely eliminates all the ambiguities in “subject to the jurisdiction thereof”? ”
If the objective is to observe the original intent of the text of the Constitution (including Amendments), how can current action by Congress be expected to have a binding, or even meaningful, effect regarding language written over 150 years ago? To me, that concept seems to be facially absurd. It also seems to advocate Congressional usurpation of the Constitutional authority of SCOTUS.
Congress can act within the constraints of the language in the constitution as written 150 years ago, and if they do that action is constitutional. Arguably the constitution allows congress to Grant citizenship beyond the text of the constitution ad 14th amendment, but NOT limit citizenship that the constitution automatically confers.
Further congress can pass an amendment to the constitution and the sates ca if they chose ratify that amendment.
It may be wise for the courts to delay. But courts must deal with the facts and the law as they ARE, not as they might be.
I would further not that “Subject to the jurisdiction of” is NOT a congressional question – you can not modify the constitution by legislation.
The arguments of Eastman and others on the issue are excellent, but ultimately they are NOT correct.
The Text, the original meaning, the use before and after the 14th amendment, the contemporaneous supreme court cases all mean that “subject to the jurisdiction of” means people who are NOT in the US representing foreign powers.
That it excludes foreign diplomats, military, and the staff of foreign govenrments while they are residing in the US. \
But that it does include citizens of foreign countries who like it or not are required to obey US laws.
That includes illegal aliens.
Congress can not change that – except by amendment the constitution.
But even if it could – the courts have a case before them. the courts are NOT there to decide what the law MIGHT be in a few years or a few months. But what it is right now.
The courts are there to say:
This is what the constitution clearly says – if you do not like that – amend the constitution.
This is what the law clearly says – if you do not like that – change the law.
The courts are NOT there to say
This is what the constitution SHOULD say
This is what the law SHOULD be.
But if we are dealing with what the constitution and the law SHOULD be
The problems purportedly cause by birth right citizenship are SMALL compared to those without it.
If you are born on the soil of the US and your parents are NOT in the service of a foreign govenrment, then you are a US citizen.
That SOMETIMES produces results we do not like.
But the alternative is far worse.
Birthright citizenship produces the CLEAREST bright line for who is automatically a citizen in the US.
As we have seen throughout US history this is an incredibly important and contentious question.
People are citizens for the most part NOT by merit, but by accident of the place of their birth.
Being born in the US confers incredibly privilges and rights that you get nowhere else in the world.
You do NOT earn those rights, you are given them purely by accident of birth.
Those here – in this country and on this blog ranting about “illegal aliens” – need to understand that but for the accident of their place of birth – they – like 8B other people on this planet would be bereft of the tremendous benefits of US citizenship.
At the same time just because the tremendous benefits of being an american are confered by accident of place of birth does NOT mean that those 8B people not fortunate enough to be born here can force themselves in and demand the same benefits and priviledges.
One of the things the left completely fails to grasp is that “Life is not fair”.
We are NOT all equal. We were not all born in the US. We were not all blessed with the same intelligence, the same physical ability, the same talents, the same character, the same drive. We are each born with a wide collection of privideges and handicaps. Just because someone else was born with a priviledge we lack does NOT mean we can demand that privildge.
John Say—I respect your view and frequently agree with you, but not on this one. The legislative history of the 14th Amendment is clear that birthright citizenship was intended to apply to the newly-freed slaves. Those slaves were “residents” of the states where they lived, for several purposes. The last few words of the 14th are: “and of the State wherein they reside.” clearly stating that the citizenship being conferred by birth in the US is applicable only to “residents” of a State. Tourists and illegal aliens are not “residents” of any State. Therefore Tourists and illegals who give birth here do not automatically confer citizenship to the child. Your arguments that this may not be good policy are interesting but properly addressed to the wisdom of another Amendment.
“Arguably the constitution allows congress to Grant citizenship beyond the text of the constitution ad 14th amendment,”
“I would further not that “Subject to the jurisdiction of” is NOT a congressional question ”
Those statements appear to be contradictory as stated. The second pointy is the point that I was making in my post above.
wiseoldlawyer: Sorry, that comment was intended to be to John Say’s 2nd post on the subject.
I will not argue that Republicans should treat Dem nominees in the same manner as Dems treat GOP nominees, but I do wish that Republicans were more circumspect in approving Dem nominees who are clearly unfit for a lifetime appointment to the federal bench. Our democratic republic is hanging by a thread in no small measure because the Dems have chosen to place activists on the courts to rubber stamp their agenda and thwart the opposition. We are but a single election away from ruin under Dem rule.
You might recall that Chuck U Schumer boasted a couple of months back that they had spent the entire Biden reign of error installing activist judges precisely to thwart President Trump’s agenda.
Here are the R’s responsible for this idiot woman: • Susan Collins (Maine)
• Lisa Murkowski (Alaska)
• Mitt Romney (Utah)
Beat me by 2 minutes…
There has been some analysis done of this – and though there is a clear partisanship issue,
The number of judges responsible for this mess is TINY. Out of a federal judiciary of something like 1000 judges,
less than a dozen are responsible for 80% of the present lawfare. Less than 3 dozen are responsible for 95% of it.
One Federal district has 60% of all nationwide injunctions right now, Two have 80%, Three have 95%.
While the specific judges in question are blatantly partisan and lawless, most did not show any indications that they would behave this egregiously until after Trump was elected. There are democratic judges that were less qualified and more blatantly partisan in confirmation hearings who are NOT part of this lawfare.
Even though MOST (not all) of the lawless judges are democrat appointments, they still make only a small portion of democrat appointments.
An incompetent justice appointed by a senile president. Full stop.
Just another mad black woman
Or installed by autopen
“Liberals who claim “democracy is dying” seem to view democracy as getting what you want when you want it.” – Excellent!
What you see is what you get. In her confirmation hearings, Justice Jackson showed herself to be untethered to both the Constitution and to very basic biology. This is the candidate who could not define what a woman is, yet somehow feels qualified to make judgments relating to women. During those same hearings, Senator Kennedy asked her about two Constitutional Amendments, and she apparently had no clue what those Amendments were, yet she somehow feels qualified to make judgments involving those Amendments. So it is not surprising to hear emotional decisions based on political leanings from this Justice.
“In her confirmation hearings…”
We can all thank the usual RINO suspects Collins, Murkowski, and Romney for allowing Jackson Brown to be inflicted on us.
It is the insanity found in Justice Jackson’s descent that mirrors the insanity of the Democratic National Communist Party of today! The American people have had enough.
The big winner is Sotomayor the WiseLatina™, whose dumbest justice ever streak ended in a spectacular and convincing manner.
Justice Jackson is . . . (wait for it) . . . a malignant moron…. Full Stop.
Had this issue been heard based on a nation wide injunction issued by a conservative District Court Judge, undoubtedly the conservative justices would have decided the same way.
Can that be said of the Liberal Justices?
Nope. One side is listening to the law, and the other to its feelings. The law does not change depending on who is implementing it, but our feelings about it do.
The law should not change, depending on who is implementing it, but in some cases it apparently does.
Excellent point. I believe we have enough of examples of the conservative Justices following the law and not political ideology. Frightening to think Jackson will be on the Court for decades.
Leaving aside whether this decision was right or wrong, its ultimate impact may be harmful.
The left in power tends to exceed constitutional and statutory bounds more than the right. Think, for example, of the abuses under Biden regarding censorship of speech on social media, the rent moratorium, vaccine mandates, takeover of student loans, reinterpretation of Title IX, reverse racial discrimination and nullification of immigration law.
Without the possibility of universal injunctions, particularly on a temporary or preliminary basis, these abuses can continue, potentially for years. It would not be until a merits judgment at the Supreme Court that they could be stopped on a nationwide basis.
It remains to be seen whether class certification or actions by groups of states will keep in place some aspects of universal injunctions. In a footnote, the Court also said it was not considering vacatur under the APA, which thus seems to remain as a possibility, though seemingly only at the end of a trial rather than the beginning.
The court’s decision was based on an interpretation of the statutory authority to impose equitable remedies rather than of the limits of Article III. So Congress and the President could modify this through law. Both sides would be wise to do so.
It is strange to see Jackson clamor for the power to unilaterally control the government on the basis that she thinks someone else is also trying to do the same. That isn’t jurisprudence, it’s a political argument. We have a ballot box to resolve those kinds of disputes.
We have three boxes.
Letter from John Adams to John Taylor, 17 December 1814
“Remember Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide. It is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy. It is not true in Fact and no where appears in history. Those Passions are the same in all Men under all forms of Simple Government, and when unchecked, produce the same Effects of Fraud Violence and Cruelty. When clear Prospects are opened before Vanity, Pride, Avarice or Ambition, for their easy gratification, it is hard for the most considerate Phylosophers and the most conscientious Moralists to resist the temptation. Individuals have conquered themselves, Nations and large Bodies of Men, never.”
One of my favorite Adams quotes. Nicely done
“DUE DILIGENCE!”
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
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“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
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“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton