Below is my column in The Hill on the chilling jurisprudence of Justice Ketanji Brown Jackson. Jackson’s description of opinions as an opportunity for commentary on contemporary issues is a radical departure from long-standing traditions on the Court. While justices have occasionally strayed into extraneous issues, Jackson appears to view her position as giving her a license to vent, including questioning the principles and integrity of her colleagues.
Here is the column:
“I just feel that I have a wonderful opportunity.”
Those words of Justice Ketanji Brown Jackson came in a recent interview, wherein the justice explained how she felt liberated after becoming a member of the Supreme Court “to tell people in my opinions how I feel about the issues. And that’s what I try to do.”
Jackson’s sense of liberation has increasingly become the subject of consternation on the court itself, as she unloads on her colleagues in strikingly strident opinions.
Most recently, Jackson went ballistic after her colleagues reversed another district court judge who issued a sweeping injunction barring the Trump Administration from canceling roughly $783 million in grants in the National Institutes of Health.
Again writing alone, Jackson unleashed a tongue-lashing on her colleagues, who she suggested were unethical, unthinking cutouts for Trump. She denounced her fellow justices, stating, “This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this administration always wins.”
For some of us who have followed Jackson’s interestingly controversial tenure on the court, it was crushingly ironic. Although Jackson accused her colleagues of following a new rule that they must always rule with Trump, she herself is widely viewed as the very embodiment of the actual rule of the made-up game based on the comic strip of Calvin and Hobbes. In Jacksonian jurisprudence, it often seems like there are no fixed rules, only fixed outcomes. She then attacks her colleagues for a lack of integrity or empathy.
To quote Calvin, Jackson proves that “there’s no problem so awful that you can’t add some guilt to it and make it even worse.”
Jackson has attacked her colleagues in opinions, shattering traditions of civility and restraint. Her colleagues have clearly had enough. She now regularly writes diatribes that neither of her fellow liberals — Justices Sonia Sotomayor or Elena Kagan — are willing to sign on to. Indeed, she has raged against opinions that her liberal colleagues have joined.
Take Stanley v. City of Sanford. Justices Jackson and Neil Gorsuch took some fierce swings at each other in a case concerning a retired firefighter who wants to sue her former employer. The majority, including Kagan, rejected a ridiculous claim from a Florida firefighter who sued for discrimination for a position that she had neither held nor sought. The court ruled that the language of the statute clearly required plaintiffs to be “qualified” for a given position before they could claim to have been denied it due to discrimination. (Stanley has Parkinson’s disease and had taken a disability retirement at age 47 due to the progress of the disease.)
Jackson, however, was irate that Stanley could not sue for the denial of a position that she never sought, held, or was qualified to perform. Jackson accused the majority of once again showing how “pure textualists can easily disguise their own preferences as ‘textual’ inevitabilities.” It was not only deeply insulting, but perfectly bizarre, given that Kagan had joined in the majority opinion. Kagan is about as pure a textualist judge as she is a pure taxidermist.
Gorsuch called Jackson out for once again ignoring the text of federal laws in order to secure the result she preferred in a given case. In other words, Jackson was playing Calvinball with the law.
Jackson, undeterred, has continued these diatribes, with escalating and insulting rhetoric. In Trump v. CASA, the court sought to rein in district courts issuing sweeping injunctions over the Executive Branch. Jackson went ballistic in her dissent, which neither Sotomayor nor Kagan would join.
Jackson accused her colleagues of blindly drifting toward “a rule-of-kings governing system.” She denounced the majority for “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.”
This is where Justice Amy Coney Barrett reached a breaking point, unleashing on Jackson in an opinion notably joined by her colleagues. Barrett noted that Jackson was describing “a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush.” 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.”
That is a slightly fancier way of describing Calvinball.
Jackson has also been criticized for making dubious or sensational claims, as in her opinion supporting affirmative action in higher education.
Jackson’s jurisprudence is the very model of a judiciary untethered from constitutional or institutional restraints. Not surprisingly, she is lionized in law schools for her rejection of judicial restraint and her pursuit of progressive outcomes. Yet, her approach is becoming increasingly lawless.
I truly believe that Jackson can leave a lasting legacy and bring an important voice to the court. However, this is one “wonderful opportunity” that Justice Jackson may want to let pass more often. Otherwise, she risks fulfilling that other lament from the cartoon Calvin: “I find my life is a lot easier the lower I keep everyone’s expectations.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”
Scrape off the makeup and wig and you’ll find Joy Reid.
Justice Jackson is a Unqualified Radical Left Wing DEM NUT CASE.
She should resign due to sheer incompetence.
Jackson doesn’t understand the role of a Supreme Court justice. She should resign and run for elective office.
Agree that she doesn’t understand the proper role of a Supreme Court justice. Nor does she care. But she does understand her role. She is acting in exactly the way she was intended to act by those who made her a federal judge and then a Supreme Court justice – Obama and Biden. She is acting and voting politically and will continue to do so no matter what. She will never resign to run for elected office. She understands her role is to support the far left in every vote she casts and every opinion or dissent she writes. The law and the Constitution do not matter to her, only what the far left expects of her. That is the way it is and the way it will remain. The three Republicans who voted for her (Romney, Murkowski, Collins) were fools if they expected anything different.
DUMB: Decidedly Unserious Magisterial Bozo
This is worse than just DEI. This is progressive thinking and jurisprudence which is to get the result you want no matter what the law and the constitution says. This is almost a complete repudiation of John Adam’s legalistic approach to the formation of the United States and its constitution.
You have safety in the law because it is written and decided upon by the people’s representatives and then a court that decides the interpretation of the law and how it should be administered. The Justices must uphold the law because if they do not then who will, the mob (which she well represents).
The chicanery by Parliament and the Kings Courts in the legal pursuit of colonists was lawfare (of the time) run amok. And when the king and his ministers did not get what they wanted in colonial courts they moved almost all court proceedings to London. Thereby creating another cause for the revolution. That’s why the constitution stipulates trials must be of your peers and in the area where the so-called crime occurred.
If you reread the Declaration of Independence, it is a virtual litany of the wrongs of an imperial judiciary with the King, his ministers, and courts failing to enforce the law or ignoring the law. I would agree Justice Jackson truly wants an imperial judiciary that is unconstrained by the law and the constitution.
Once again, the damage done by the Biden administration is breathtaking, difficult to reverse by design, and will after a mere four yeas, take generations to fix. Had Kamala been placed in power there’s no question we’d be finished as a free society.
We’ve had the sneak preview of what the dems will do if they ever hold power again, and we’ve now heard their openly stated intentions. There may not be much we can do about Jackson, but we can hold the line and prevent there being an entire court of similar ideologues, and we had better do it. It’s been madness since 2020, and we can never go back to that. She needs to be a footnote, as does the attempted, nearly successful, but halted globalist overthrow of our government.
While I agree about Jackson, what about Barrett here?
Her vote allowed the APA case against the guidance to remain in the District Court, even though the injury arose entirely from the termination of the grants. As I understand her position, the plaintiffs may now choose to proceed either in the Federal Court of Claims under the Tucker Act or in the District Court under the APA. It is not clear in the case of the latter if reinstatement of the grants is a possible remedy, if they can show that the guidance led to the termination.
Four of the other justices found that it did, and so the case could remain in the District Court in its entirety. The other four justices found that because the injury arose from the termination of the grants, the case had to be resolved in the Federal Court of Claims, regardless of why the terminations were made. Only Barrett said the District Court could here the case on the guidance even though it could not on the terminations.
The one virtue of Jackson’s opinion is that she called out Barrett.
The series of cases on grant terminations suggests that the Harvard case should be sent to the Federal Court of Claims. We’ll see what yet another Massachusetts District Court does with that one, in the light of this latest decision, and Gorsuch’s diatribe against defiance of SCOTUS decisions.
One thing more on Barrett. In a footnote she seems to suggest that the District Court’s vacature of the guidance would have prospective impact only, so the reinstatement of the grants could not be a remedy. For that the plaintiffs would need to go to the Court of Federal Claims. If that is correct, then her opinion makes more sense.
Just to finish on this, Gorsuch says in a footnote that the District Court chose not to address the plaintiffs’ allegations regarding new applications, so did not make prospective relief the focus of its remedy under the APA, but instead granted reinstatement of the contracts. Without the alleged contract violation as the wrong that caused the injury, and the possibility of a remedy to that wrong through reinstatement, the plaintiffs appear to lack standing.
She rejects the rule of law and verbalized her belief that her role is to rule as one of a nine member group of autocrats, free to impose their will on the entire populace. Why? Because they said so, that’s why. She stated that is what is already happening, just wrapped in textualism, but like every other thing I have seen her write or be quoted as saying, she is wrong.
The Framers built amendment processes into the Constitution. Originalists see this as a limit consistent with a limited government. Living constitutionalists not so much. For them the outcome can be the color of the twist tie on the bread for that day of the week. Same idea with textualism for statutes. The first thing a Justice should do is ask self if a statement advances or retards confidence in the finality of any given Supreme Court decision. Restraint is appealing as a better choice over gushing. Justice Jackson is smart. She can do either with aplomb.
@Mike
‘Living Constitutionalists’? Sure. We’ll just ‘update’ the Constitution for modern times because it’s an anachronism. And Judge Jackson – smart, aplomb? Pfft.
“Justice Jackson is smart.”
Do you have any proof of this? All publicly available evidence points to the opposite.
@Anonymous
Biden stated he had two qualifications for their nominee: 1)black, 2) a woman (funny how that word is no problem when it’s convenient). Nowhere present in the conversation were ‘well versed in the Constitution and law’, or, ‘smart’. It was all the very definition of absurd.
Unsurprisingly, Jackson’s rhetoric is that of the regime, sorry – ‘party’ – by rote.
Actually, it’s probably not a bad thing. Dislike of another justice’s jurisprudence and manner have pushed other justices away from that justice’s position. Rumor is that Justice Brennan’s jurisprudence pushed Justice O’Connor to the right in her early years. Justice Scalia’s stinging dissents pushed for to the left in later years. In the previous term there was some drift by Justice Barret towards the camp of Justices Jackson, Sotomayor, and Kagen. Justice Jackson’s latest antics may reverse that drift.
“ Jackson appears to view her position as giving her a license to vent, including questioning the principles and integrity of her colleagues.”
She’s right. She can do that. That’s why some conservatives and Professor Turley are “upset.” As a Supreme Court justice she’s free to offer her opinions on the machinations and disingenuousness of some of her colleagues. Just because it’s tradition not to do it does not mean she can’t. Professor Turley wants to paint Justice Jackson as an “outlaw” within the Supreme Court. We all know Supreme Court Justices are supposed to be bound by ethical standards but they regularly ignore them when it’s inconvenient.
“ Jackson’s sense of liberation has increasingly become the subject of consternation on the court itself, as she unloads on her colleagues in strikingly strident opinions.”
Of course it has. Because they can’t do anything about it and she’s exposing the Calvinball methods of the court’s conservatives particularly the originalists and textualists who often discard or ignore those principles when they become inconvenient truths or outcomes that contradict their philosophical approach to laws or policies or even constitutional interpretations.
Justice Jackson does not mince words when she has an opinion about her colleagues’ Calvinball antics. She’s not wrong and she indeed can do what she’s doing. The Professor is running interference for the conservatives on the bench by smearing her as a violator of traditions and norms because he is obligated to defend the crooked norms and traditions that are expected to be maintained.
Just anther loud mouth person. Who can’t tell you what a woman is.
Your rebuttal conveniently leaves out where you feel that the so-called conservative judges have employed the same methods when it suits their beliefs. I’m not aware of any such ruling. Care to elaborate? Also, where is the rule of law in all of this? Where is the constitution? Jackson appears to be the living embodiment of DEI on the Supreme Court. I recall Biden stating that this next appointment would be both African-American and a woman. Good grief!
How long ago did your blunt head trauma occur?
You love the sound of your own voice, but as usual you make no arguments, just snide attacks.
While Justice Jackson has the same freedom of speech as any other American, she also has responsibilities as a Justice on SCOTUS. She also has responsibilities specific to her job as a SCOTUS Justice, to participate in rulings and issue decisions based on the Constitution, settled law, and basic facts. Her feelings and general opinions should be reserved for a separate venue.
The absolutely scary part of this article is the part “she is lionized in Law Schools”……..This Judicial lunatic should be the shining example of a Judicial Tyranny in the making!
“she is lionized in Law Schools”
If our law schools remained worth a damn, she would be burned in effigy on the campuses.
The Court has always had oddballs. Justice Jackson has cemented her reputation as someone who frequently abandons both the law and the facts. She is by character and instinct an often-sidelined autocrat.
She can’t even remember she is a women another Biden stuff up🤦♀️
She can’t distinguish between being a Supreme Court justice and an advocate. More of a William Douglas than a Hugo Black is my impression (all D’s)
or maybe Felix Frankfurter is a better choice than Black
Or Holmes…
The odds KBJ would have the legal intellect for SCOTUS, after failing the entrance exam during confirmation, was always near zero.
SCOTUS has been viewed as the fail-safe in the event the enemy got inside the wire. Not any more She makes Sotomayor and Kagan seem solidly conservative.
DEI in action.
“she felt liberated after becoming a member of the Supreme Court ‘to tell people in my opinions how I feel about the issues.'” —
Herein lies the root of Justice Jackon’s understanding of her responsibility on SCOTUS. During her confirmation hearings she demonstrated a profound lack of knowledge of the Constitution. When questioned by Senator Kennedy, she did not know even basic Amendments. Also, during her confirmation hearing, she claimed to have no idea what a woman is. This should have been a clue that her decisions would not be tethered by the Constitution, by settled law, or even by generally understood facts. She is, however, deeply tethered to her feelings and personal opinions, which she seems to believe is more important than facts and laws.
DEI: Don, Eric, Ivanka.
“DEI: Don, Eric, Ivanka.”
That doesn’t even begin to make sense. It’s like you’re just a talking points bot.
Don, Eric and Ivanka are all smart, successful people on their own merits. Something Jackson cannot claim. She is just a DEI hire.
Bot? Me thinks so
“I truly believe that Jackson can leave a lasting legacy and bring an important voice to the court.”
Get serious professor. You could say the same thing about Al Sharpton, Louis Farrakan or Mazie Hirono.
Jackson is the skunk that Joe Biden smuggled into the Supreme Court building and the odor will last a lifetime.
In the context of “Hans Brinker and the Silver Skates”, a children’s novel set in Holland dating to 1885, the Supreme Court plays the role of the poor Hans trying to plug holes in the dikes that keep the community safe from disastrous floods. The Court works tirelessly, mostly in silence, trying to plug the holes of injustice in our legal system. Now we have a justice on the inside, Justice Ketanji Brown Jackson, doing her part to drill more holes in the dikes. The virtuous Hans had limits to his abilities. We can only hope the Court can persevere in its analogous mission.
This is what you get when you appoint a low IQ person to a Federal court. Personal opinion over constitutionality.
Thanks Biden.
Not only Biden but the weak and corrupt GOP that refused to block her and voted in the affirmative. THANK AND ENSURE YOU VOTE OUT MITT ROMNEY, S COLLINS AND LISA Murk., of the senate!