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.
No Kings. Just Communism.
Communism is unconstitutional.
King Communism is unconstitutional.
Redistribution of wealth and social engineering are unconstitutional.
Private property and taxation for ONLY debt, defense, and “general Welfare”—security and basic infrastructure serving all or the whole—are constitutional.
Up until yesterday there were more than 670 kings in the US.
The Party of the First Part sued the Party of the Second Part to join in union to form the Party of the Third Part! Nonsense indeed, just as some laws are written, taking a reasoned jurist to interpret. When a jurist cannot use base facts in their determination(s) they cease to be trusted.
George Santayana: “Nothing is really so poor and melancholy as art that is interested in itself and not in its subject”.
In support of my claim in the first paragraph from 43-CFR: “The authorized officer must suspend the requirement for continued operation by the period of time he or she determines that strikes, the element, or casualties not attributable to the operator/lessee have interrupted operations….”
George W
Otherwise stated, Justice Barrett dropped a MOP on the unhinged dissent of a Justice who cannot (or in deference to wokeism, will not) define what a woman is. Rest assured, every single Founder understood what a woman was.
We now seem to have a SCOTUS Justice nominated by an autopen, but also — lamentably — confirmed by a spineless Senate.
“confirmed by a spineless Senate”….
No kidding. It was clear during her confirmation hearings that she was not Supreme Court material. It. was. obvious.
There is smart enough. And then there is Supreme Court smart.
Even Kagan passes as ‘Supreme Court smart enough.’
But not Sotomayor. Clearly not Jackson.
It should have been a no vote. Grow a spine. Take the incoming.
Every GOP Senator who voted to confirm this dummy out of fear of being called racist bigot should be shamed, relentlessly.
To me the truly scary thing is that the Democrats have nominated a lot of judges like Ketanji to the federal bench and useless Republicans let them do it without opposition.
They are gangrene in the American judiciary.
The infection is debilitating, potentially lethal, and not easily cured or removed.
On the bright side, at least we didn’t get Garland on the Supreme Court.
I regard this BLOCK (keeping Garland out of the Supreme Court) as McConnell’s one saving grace.
“To me the truly scary thing is that the Democrats have nominated a lot of judges like Ketanji to the federal bench and useless Republicans let them do it without opposition.”
Agree, with a possible caveat. I have begun to wonder if some of those “Republicans” are not consciously complicit in killing our Republic. Money speaks loudly to most of them, and posturing seems to be a required natural talent for politicians of all stripes…
So what are the consequences of Justice Ketanji Brown Jackson’s ‘Speech’ (The manor of Her speech) sans Her Descent Opinion’s direction.
What I am driving at is, Her ‘Tone’ not Her ‘Position’.
Does the Tone of the Descent incur consequences?
Does the Position of the Descent incur consequences?
Her Position fails in a number of ways. But a failed argument does not merit consequences under the Rotunda.
Her Tone however does merit consequences. But What are these.
It’s easy to say that a Diminished Reputational Standing is a consequences.
It’s a bit harder to say that her Intellectual Capacity is consequential in her standing (SCOTUS Seat).
It’s fair to say the her Descent will have impact on her Fellow Brethren’s personal opinion of her capacity, of which carries negative consequences.
“Does the Tone of the Descent incur consequences?
Does the Position of the Descent incur consequences?”
No. It’s her opinion. There is no need for consequences. You want to punish her for her Tone? Sounds very woke.
G,
In the manner She delivered it. Personally I think that could been conveyed to her Brethren ‘Off the record’. Her position (that Appellate Courts have standing in the matter) could have then been better focused, given if she could have found a way around the Constitutional issues.
The ‘Total Impact’ of her Opinion carries consequences. Albeit the danger of Politicization of the decorum of the “In Seriatim Opinion” for years to come.
Rephase:
Her sentiment became the politicization of the Opinion. Wherein endangering the institution of the institution of the In Seriatim Opinion.
She ‘infected’ it (the In Seriatim Opinion) with Politicization.
She ‘crossed the line’
She ‘Crossed the Constitutional Line’ of the Social Contract.
By way of imparting Politics into her Opinion, She broke the Constitutional bonds of Equality of Justice for All.
The Social Contract’s [Constitutional] canon is a principle or rule of interpretation used by courts to construe the meaning of a constitution, particularly when resolving ambiguities or potential conflicts within the text. These canons guide courts in deciding how to apply constitutional provisions to specific cases, often involving a choice between different interpretations.
The Constitution itself is an equation-rule, a zero-sum-game of equality.
Re.: Canons of Construction adapted from Scalia & Garner)
Negative-Implication Canon. The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius).
i.e. The
expressionAdvocacy of one thing implies the exclusion of other’s Equality.Then She had the gall to mint it into a Dissenting Opinion of an In Seriatim Judicial Opinion.
There is no excuse why her office missed this fundamental Constitutional principle – Her law office is tainted, there was no ‘mistake’ from their perspective, this was deliberate.
She is quickly becoming the AOC of the Judicial Branch, and it appears that She is doing it on purpose. Why? None knows, She’s at the top of the Tree’s branches, there’s nowhere for her to go.
If she or her office is the Leaker of the Dobbs Decision Draft, Chief Justice John Roberts could show her the door, if he had a spine.
It was Kagan.
George posted: No. It’s her opinion. There is no need for consequences.
Same justice who while testifying to the Senate under oath, took a squint down into her panties, then looked up and said she couldn’t define what a woman is. Consequences for for deliberate lying, whether under oath to the Senate, or this attempt to create a judicial monarchy of kings and Queen Bees are just that: earned consequences, not “punishment”.
And it is the very definition of DEI Woke to defend both the perjury and the attempt to appoint herself, Kagen, and the racist Sotomayor as Queens empowered to subjugate the Executive Branch and rule the republic.
Pathetic attempt at DARVO. No points awarded.
George.
Odd you seem to hate opinions. How many times have you posted something that was an opinion and NOTHING more. Yet you treated it as fact
Consequences? Keep smelling salts handy and someone to loosen corsets? Serve soy milk for lunch?
Ketanji Brown Jackson has shown time and time again that she is in Way Over Her Head ! She has no right to be on the Supreme Court of the land.
Jane Wilde, are you related to Oliver Clozoff?
The consequences are an understanding that she regards the Constitution as a museum piece of what she considers an evil nation.
Mockery
How does Article lll balance universal injunction with an individual plaintiff’s needed relief and not wreck what the co-equal Article ll people are trying to do to keep promises to The People that got them elected? We have the answer from 6 of the Justices. Justice Jackson could have stopped at adoption of Justice Sotomayor’s dissent. What she added is a window into the liberal mindset that is blind to the outcome here: less is more.
To emphasize one thing MG said, Jackson joined the Sotomayor dissent and started her opinion with “I agree with every word” of it. Neither Turley nor Barrett seem to acknowledge or address that in their Jackson criticism. (From Concerned Citizen)
She never shuts up nor Sotomayor. It’s difficult to listen.
Turns out “Justice” Jackson is not only not a biologist but also not a jurist.
Wisdom is not her strong suit. But that’s what we should first demand of a SCOTUS Justice. But Biden had other ideas. Would you pick a surgeon to operate on you based upon color and sex, or skill? That same notion ought to apply to the field of law.
Socrates 12PM-definitely agree. Always ask that question. Color, ethnicity, sex has no bearing on the quality of the mind that operates on you or judges your case. Experience, on the other hand can add significantly but on occasion can fool you if you interpret your experience incorrectly.
Last March Sen. John Kennedy (R-LA) asked all of the right questions to a Trump Assistant AG nominee about universal injunctions, esp those used against President Trump. Sen Kennedy is a mensch
If a constitutional right were enacted over 100 years ago and there is decades of case law clearly defining those rights (from gun rights to women’s right to vote).
Any government-attorney litigating such a taxpayer funded frivolous lawsuit should be disbarred from ever practicing law again.
In other words, what if a president – using an Executive Order – takes away your 2nd Amendment gun rights or women’s voting rights?
If such an highly incompetent government-attorney even filed such a frivolous lawsuit why isn’t the burden placed on the incompetent attorney? Why doesn’t the incompetent attorney wait years for the case to be settled through the courts? Why is the burden on those regular Americans complying with centuries of American law and constitutional precedent?
So far ICE has primarily harmed children, farm workers, factory workers and landscapers. Very few were violent criminals. Why is the harm and burden placed on these defenseless people with no political power?
Maybe Pam Bondi’s Christian faith could help her to change direction?
@Anonymous
Nice try. 🙄🙄
James 11:40 AM. Anonymous 11:25 am’s try was not really that nice. Virtually all illegals knew they were not legal and yet they came any way. They as well as the officials that let them in should be removed. I prefer exile for the officials, deportation for the illegals. I feel exile should be brought back as a judgement and sentence.
Yes, GEB, exile.
Rambling disjointed thoughts from an obviously mentally challenged individual. It’s sad that they let you use a computer.
A Soviet Democrat Speaking Their Truths: So far ICE has primarily harmed children, farm workers, factory workers and landscapers.
It’s expected that a communist would claim that the Illegal Aliens from MS-13 trafficking would-be Illegal Alien children into sex slavery, under the table child slave labor, etc would claim it’s actually ICE, by undoing their child trafficking, that are the ones harming children. Just like they would claim that the violent criminal Illegal Aliens ICE is focusing on as the first to deport, are in our largest cities working as farm workers to pick our lettuce in the feces strewn streets of San Francisco. And the ones that were in Martha’s Vineyard: why did they rush to have the National Guard rush them out of there, when they were essential factory workers at Martha’s Vineyard?
You can always trust atheist communist Democrats to give you intelligent commentary on Attorney General Bondi’s religious faith.
“So far ICE has primarily harmed children, farm workers, factory workers and landscapers. Very few were violent criminals.”
Citation please?
There’s that word ‘collective’ again as spoken by Justice Jackson. This is going to get mire interesting by next season.
Republican Attorney General Pam Bondi supported nationwide injunctions ordered by district judges when Obama voters were on the receiving end. Wasn’t aware that laws only work when your party is in power.
Now Bondi’s legal ethics seems to have flipped! What does the Florida State Bar think about these legal ethics?
I think you have incorrect information here. Even leftist Google states she didn’t support nationwide injunctions against Obama.
Sure, her facts are wrong, but she feels that’s she’s right. In the end, isn’t that what really counts?
A fan of Comey, Garland, McCabe, Lynch, Yates, etc – all members of Professor Turley’s Washington DC Bar Association, wants to wonder what the Florida State Bar thinks about Bondi’s ethics – but NO question of why the Washington DC Bar Association supports the felonious conduct of so many of their members.
If you believe they actually believe in legal ethics, I have a cruise ship terminal in Arizona I can give you a smoking deal on to purchase.
And, now you won’t have to worry about that…. the “injunction” game was always political obstructionism, regardless of who did it—calling “flipped ethics” is just another way to say waaa-waaa when you can’t be in the win-column: your harping makes no sense, when democrats have dominated and taken the topmost tally on incessant injunctive-interference.
Obstructionist yes, but it has another end in sight. Laws written by the judiciary and by law breakers. It’s sweet. 😉. The devil will have his due. Alito won’t drown nor Thomas but the others?
A socialist by the name of Mamdani has won the Democratic mayoral Primary in New York. Mamdani has declared as part of his platform the idea that white property owners in New York should pay higher property taxes than black property owners. I forecast that if he is elected and tries to implement his idea that one day his actions will be heard by The Supreme Court. I also forecast that when the case comes before the court that Jackson will be right there in support of Mamdani’s great idea. One socialist rubbing the back of another socialist who was appointed by another socialist. The Democrats world goes around and around the Stalinist merry-go-around and all the adults who are still children scream with joy.
It’s perversion. The nature of perversion.
THANK YOU PROFESSOR, I’m seeing the three liberal minority interpreting the Constitution to what they want it to say/mean/be, not the intent in which it was written….
God Bless you my friend…
Barrett’s broadsides at Jackson that caught my attention: “a startling line of attack that is tethered neither to these sources but, frankly, to any doctrine whatsoever.” Her “position is difficult to pin down.” She argues that “analyzing the governing statute involves boring ‘legalese’…” Translation: Jackson, you’re an intellectual lightweight. It’s hard to miss the condescension which, honestly, is well deserved.
It is all Democrats have done since Hillary’s 1990s “vast right wing conspiracy” when Americans characterized her husband as a sexual predator. Since then their denials of corruption, lying, personal enrichment and dividing and conquering America have increased exponentially. They lack remorse, shame and willingness to listen to Americans.
It is apparent Americans but especially the intellectual and Catholic SCOTUS Justices are done with the Leftists superiority complex, hence ACB’s well deserve bench slap to Ketanji “Im not a biologist” Jackson.
Antonin Scalia is smiling from Heaven
I note that Justice Jackson responds to this difficult to pin down statement in footnote 1 on page 6 of her opinion.
(From Concerned Citizen)
That Ketanji woman jive like a mutha. You would, too, if yo great-great-grandparents was imported for less than $10 counted as 3/5 and butter John Marshall toast. You can light the kitchen stove wit dat textualism. Her rap be reparations, for over 200 years of jurisprudence: Ketanji Dred.
Did you personally get something from it? How have you benefitted?
THAT DOES IT!
Justice Amy Coney Barrett has my vote for next Chief Justice.
Four (4) Justices need to retire and hit the book-tour circuit.
John G. Roberts, Jr. (Chief Justice)
Clarence Thomas: (Associate Justice)
Samuel A. Alito, Jr. (Associate Justice)
Sonia Sotomayor: (Associate Justice)
They have met Retirement Age, However, if Ketanji Brown Jackson is any example of the cream-of-the-crop in Candidates for the Bench, then We might start look Abroad (Europe, Asia, S. America, Oceania, …) for replacements. Has the Judicial Branch’ pool of Justices sunk so deep the we only have the Creatures from the Black Lagoon* to chose from?
Justice Ketanji Brown Jackson has just tried to turn the SCOTUS from:
“Nine Little Law Firms” into “Nine Golden Judicial Thrones” with Lifetime rein.
Holy Cow! Talk about your ‘Game of Thrones’ maneuver.
Ref.:
List of the current justices: (in order of seniority)
John G. Roberts, Jr. (Chief Justice – 70 ~ G. W. Bush)
Clarence Thomas: (Associate Justice – 76 ~ G. W. Bush)
Samuel A. Alito, Jr. (Associate Justice – 75 ~ G. W. Bush)
Sonia Sotomayor: (Associate Justice – 70 ~ Obama)
———— Retirement Cutoff ————
Elena Kagan: (Associate Justice – 65 ~ Obama)
Neil M. Gorsuch: (Associate Justice – 57 ~ Trump)
Brett M. Kavanaugh: (Associate Justicee – 53 ~ Trump)
Amy Coney Barrett: (Associate Justicee – 70 ~ Trump)
Ketanji Brown Jackson: (Associate Justicee – 54 ~ Biden)
https://simple.wikipedia.org/wiki/Supreme_Court_of_the_United_States
*Movie reference: (Not intended nor meant to be a Racial Slur)
https://en.wikipedia.org/wiki/Creature_from_the_Black_Lagoon
Typo Correction:
Brett M. Kavanaugh: (Associate Justicee – 60 ~ Trump)
Amy Coney Barrett: (Associate Justicee – 53 ~ Trump)
Conservatives unlike the leftists have not embraced the idea of forcing Supreme Court Justices into retirement. That is the reason KBJ is on the Supreme Court. Never worse Wikepedia as a source for serious argument; ACB listed age is incorrect, as much of thought process.
THAT DOES IT!
Justice Amy Coney Barrett has my vote for next Chief Justice.
Four (4) Justices need to retire and hit the book-tour circuit.
John G. Roberts, Jr. (Chief Justice)
Clarence Thomas: (Associate Justice)
Samuel A. Alito, Jr. (Associate Justice)
Sonia Sotomayor: (Associate Justice)
THANK GOD YOU WILL NOT GET A VOTE! Even a blind pig finds the odd acorn. Coney Barrett’s ruling in general so far are mostly a reminder that she appears to be the next Chief Justice Roberts in the making – usually riding the fence just as hard as he does. Roberts will eventually retire; there’s a pretty good chance that Comey Barrett thinks if she plays her cards right, the could run the same kind of SCOTUS that Roberts does – with the appeal that nominating her for that position would allow those nominating her to have created the first female Chief Justice.
Disagree, They will Retire in time for Trump to Appoint their replacement before he leaves office. This is the last Trump Admin (2nd Term), No guarantee that the republicans will hold the Executive Office in 2028. So get the ball rolling now and get the Republican Appointee on the Bench.
Clarence Thomas will be 79-80 by the end of Trumps term. I don;t think he wants to go on more than that.
Sonia Sotomayor will be 73-74 by the end of Trumps term. She may hold out for a possible Democrat President in 2028, but since her Mother died She has stated that her Retirement was on the table.
Samuel A. Alito is right behind Thomas, He’ll be 78-79 by the end of Trumps term, He look healthy enough but I don’t think he wants to pull a Ginsberg and Die in the Seat.
That leaves John Roberts, he’ll be 73-74 by the end of Trumps term. Honestly I don’t see him wanting to stay long either. He will be looking at the 2028 outcome and adding up the additional time (age 74 to 78), Maybe he’ll go for 1 more term.
All four of them are reasonable people that see that Retirement has its advantages. In addition they can stay involved with the SCOTUS as ‘Of Counsel’, so the timing particularly of Thomas, Alito and Roberts to choose retirement will be based upon the Republican Party advantage. As for Sotomayor, I think she’s just tired of it.
Thank you for clearing that up.
As the Supreme Court moves forward in its duties the evidence is becoming more clear that the liberal side of the court are in fact activist judges.
I guess even justices get black fatigue.
Both they love dressing in black robes. What’s your preference?
“When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” (Barrett)
In terms of political philosophy, Barrett’s wise statement acknowledges that the concept of “limited government” also applies to the judiciary.
So well said
Thank you.
Who actually picked KB for justice? We can be certain it was not Biden. Harris?
Biden’s puppeteers compiled a list of the dumbest, most partisan lawyers in the United States, then went to the bottom of that list.
I was just going to say that they had a cookie jar full of papers with the names of DEI ignoramuses and they just grabbed on. Same process – ideology is the means to the end for them.
Auto pen. I believe there might be a challenge coming.
She is not the brightest bulb on the tree.
Who ??? Jo Jo Biden, Mr. Sniffer Whiffer
She was an auto pen choice.
Anon– “Who actually picked KB for justice? We can be certain it was not Biden. Harris?”
Autopen
The Senate.
Justice Jackson 5 minutes in the future:
“Using the Constitution to interpret the Constitution is unconstitutional!”
Great laugh indeed,