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.”
A long post attacking Jackson but never refuting that the court does regularly change the rules to benefit Trump. Jackson is right to call them out.
“A long post attacking Jackson but never refuting that the court does regularly change the rules to benefit Trump. Jackson is right to call them out.”
Let’s see, a snide comment lacking any evidence. Justice Jackson, is this you? Don’t you have better things to do with your time?
Funny that her “calling out” doesn’t include her fellow leftists concurring. It’s almost like she’s an idiot taking indefensible positions, grandstanding but not adjudicating law.
The court follows the constitution, which is what Trump is attempting to do also. The fact that DEI hires see this as wrong illustrates just how out of touch they are with, not only our constitution, but reality in general. But that is the constant state of the prog/left – residing in a fake reality of their own creation.
We are fortune enough to have SC justice put on full display of how wokeism is bad not only for the law, but the country as a whole.
Keep on keeping on Justice Jackson. You only prove our point that leftists should never be allowed access to any positions of power or control of anything.
You are correct for those of us with enough functioning grey cells to comprehend that but to the prog/left she is a hero dispensing truth… you can’t convince the brainwashed that they are wrong.
“I truly believe that Jackson can leave a lasting legacy and bring an important voice to the court.” Oh, please. If you were honest you would never have written such an absurdity. Why do you feel the need to contradict everything you had just written?
The only positive result that may come from Jackson’s tenure on the court is that which we’ve seen in regard to the Executive and Legislative branches. They became so extreme that any half-way reasonable person understood that they had gone over the edge. It seems like even the other Leftists on the court recognize that and are refusing to go along.
An “important voice”? A “lasting legacy”? If so, only ways she does not understand nor desire.
I agree with Jonathon. Her important voice is “I’m not qualified for the job” and her lasting legacy is “see what happens when you give a DEI Hire a lifetime job”. Good news, though, as she will be a prominent, everlasting meme for the stupidity of DEI.
She was appointed because she was black, radical, and ignorant of the courts role in America’s third branch of the government. She will someday be a deciding vote on something important and then we will be in big trouble.
Confucius says: You can take poison ivy from the forest and plant it in your flower garden, but it is still poison ivy.
I am not a fan of Justice Jackson up to this point. It has nothing to do with her legal opinions, but the histrionics of her dissents. I get it, she is on the losing side and it gets frustrating. So far for me it is the insults. These are the toughest cases to decide and screaming at your colleagues is not going to help your case.
One can only hope she calms the waters as she develops as a Justice. She does not have to see the law the same way as all of the others, Justice Brown does have to learn raging is not the way to go.
She is often on the losing side because she doesn’t think right.
If she doesn’t have the temperament, then she should resign. Let someone more qualified take the spot that she’s wasting now.
Quiet Man, you sound like a gentleman and a decent person to debate with, but you are totally wrong about Jackson and her political reasoning. It isn’t JUSt that her rage is wrong it is that her opinions are out of the realm of our Constitution, Court precedence and logical reading of statutes. It is ” legal deconstruction” writ large and it is a growing cancer that first invaded the body maybe 35 years ago. The left “deconstructs” anything they disagree with using word salad PHD level jargon that in reality is closer to Professor Irwin Corey than to William F. Buckley all the while making no sense at all.
“I just feel that I have a wonderful opportunity.” – KBJ
That’s true, So don’t blow it by playing God with extemporary Opinions!
• Extemporary (adjective) describes something done, said, or composed with little to no prior preparation or thought. It’s synonymous with words like impromptu, ad-lib, and off-the-cuff. The word comes from the Latin phrase “ex tempore”, meaning “out of time” or “on the spur of the moment”.
An extemporary lecture, speech, or performance is one that is delivered or composed on the spur of the moment, with little to no previous preparation. The word functions as an adjective and is a synonym for extemporaneous.
• Extemporaneous: (adjective) This is the most common synonym for extemporary and means “spoken or performed without preparation”.
The problem is that KBJ is a moron with a law degree. She’s the DEI Kamala Harris of the court and has no business whatsoever being there. I disagree with Sotomayor and Kagan on most, if not all, matters, but they’re serious people. They often have a differing opinion from my own, but they offer reasonable arguments. KBJ views her role on the court more as that of an activist District judge that doesn’t mind being overturned.
You are right. All of the discussion regarding Jackson’s dissents and writings ignores one fact…she just isn’t bright.
I agree with you on Kagan being a serious person. Not so much for Sotomayor. There’s a reason why some consider her as a “wise Latina” and not in a good way. If I remember it correctly, she said something, IMO, profoundly dumb during the Supreme Court case regarding if the federal government have the right to impose a COVID-19 vaccine mandate on private businesses.
That being said, I still like your comment. 🙂
Long after Biden is gone we will have many reminders of his staff making
such decisions as appointing this moron. There are many like her ready to
step up and give us bottom 4% results just like he has. They both think
they are normal. It is no surprise that about 30% of our country agree with
them. Hopefully it will continue at that level.
Have any investigative “journalists” asked Collins, Romney and Murkowski how they feel about their support of Ketanji’s confirmation?
It’s one thing to be unqualified to even practice law and another to be a DEI hire . . . But by being an unqualified, DEI hire on the Supreme Court . . . That girl hit the jackpot.
“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.”
Its amusing how the Professor seems to lament the lack of keeping tradition and civility while ignoring the fact that they are neither the law nor required. Just because something is a tradition doesn’t mean to can’t be questioned or challenged. Jackson is pioneering that approach and it bothers the traditionalists who demand adherence because it’s what is expected of everyone. She may be annoying and a pain to her more conservative colleagues because clearly she’s not afraid to point out the conservative majority’s inconsistent and often contradictory application of their supposed originalist and textualist philosophy. They don’t like that she points it out loudly and publicly.
Jackson is so stupid that she doesn’t even know what her job is. Supreme Court justices do not make policy. She should run for office if she wants to do that.
She’s the loudmouth ignorant newbie who doesn’t know her place. Even her fellow leftists have been distancing themselves from her, as she continues to embarrass herself.
She “knows” what her job is. Her marching orders are to the left regardless of the law. She has a desired outcome and will say anything to justify it. Members of the senate, never complain about the qualifications of a Trump nominee after voting for this fine example of idiocy over substance.
Unfortunately, this stain of the Biden era will remain for many years. All we can hope for is she will remain in the minority opinion and will continue to be a reminder to all of what happens when DEI runs amok.
Justice Barrett stated this: “We observe only this: Justice Jackson decries an imperial executive while embracing an imperial judiciary.”
Bravo, but I would have been more pointed:
“We observe only this: Novitiate Justice Jackson decries the majority decision as imperial-enabling, while embracing her solitary imperial jurisprudence as superior to that of the majority.”
Lin, what do you think of Barrett’s concurring opinion in the DEI grants case?
Also, I was struck by Roberts’ agreeing with the three liberal justices to deny the application in full. Maybe he is anticipating doing the same thing when the Harvard case comes up?
Gorsuch’s attack on district court defiance is undermined by Roberts’ opinion here agreeing with the district court, at least on jurisdiction.
“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.”
In the Stanley case Justice Jackson correctly pointed out the majority’s opinion relied on pure textualism devoid of context. She showed she was paying attention to the facts while the majority was laser-focused on a few words only. Ignoring the overall context of the ADA and the intent of Congress.
Justice Jackson makes her case by providing the history and context of the section the majority ignored.
“Congress passed and President George H. W. Bush signed the ADA into law 35 years ago. This landmark legislation’s overarching aim was “to assure equality of opportunity, full participation, independent living, and economic self-sufficiency” for the millions of Americans with disabilities. §12101(a)(7). Thus, Congress designed the ADA as a “comprehensive national mandate for the elimination of ” disability discrimination that would “provide clear, strong, consistent, enforceable standards addressing discrimination” against disabled Americans. §§12101(b)(1), (2).
Title I of the ADA prohibits disability discrimination in the employment context. It protects against disability discrimination with respect to the provision of, among other things, “fringe benefits,” “employee compensation,” and “other terms, conditions, and privileges of employment.” §§12112(a), (b)(2). Section 12112(a) sets forth Title I’s general prohibition, which states: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Section 12112(b) then provides specific examples of discrimination that Title I prohibits.
As the ADA made its way through Congress, employers worried that the bill would require them to hire and retain individuals who—even with reasonable accommodations—could not satisfy a job’s demands. Title I’s qualified-individual provision was Congress’s response to that concern. See H. R. Rep. No. 101–485, pt. 2, p. 55 (1990). Borrowing similar language from §504 of the Rehabilitation Act of 1973, 87Stat. 394, 29 U. S. C. §794, Congress inserted the “qualified individual” phrase into Title I’s general prohibition, and it elsewhere defined a “qualified individual” as one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” §12111(8). The point of inserting this definition and relying on it in the ADA was simply and solely “to reaffirm that [Title I] does not undermine an employer’s ability to choose and maintain qualified workers.” H. R. Rep. No. 101–485, pt. 2, at 55.
Today, however, the Court takes Title I’s qualified-individual definition out of context and assigns it an additional function: to act as a strict temporal limit on the reach of Title I’s protections. That is, the Court reads the qualified-individual provision to mean that only those who hold or desire a job when alleged discrimination occurs can claim Title I’s protection. See ante, at 18. It is on that ground that the Court concludes that Lt. Karyn Stanley—a now-retired firefighter suffering from Parkinson’s disease—cannot make out a Title I claim against her former employer for (assumed) disability discrimination relating to retirement benefits that she earned in the line of duty.”
Justice Sotomayor concurred in part meaning she also agreed with this point. Justice Jackson lone dissent pointed out how the majority’s reliance on pure textualism to avoid the context and intent of Congress when it wrote the ADA section in question. Her dissent exposed the conservative majority’s Calvinball antics for all to see. They always focus on textualism when it benefits their point of view but switch to a broader context when it does not.
Just like Jackson, you talk a lot but say very little.
The woman retired due to her disability and never even applied for the position in question…
You say, “In the Stanley case Justice Jackson correctly pointed out the majority’s opinion relied on pure textualism devoid of context. She showed she was paying attention to the facts while the majority was laser-focused on a few words only. Ignoring the overall context of the ADA and the intent of Congress.” In other words the majority applied the law – not exactly a novel concept. Justice Jackson, on the other hand, was applying to the case her views of what the law should have said. In general, this approach is pretty unconstrained. My friend, we should not have the third article branch “rescuing” the 1st and 2nd article branches for what some might think as a mistake. If there is, indeed an error, Congress has the ability to correct it.
“to tell people in my opinions how I feel about the issues.” (KBJ)
“You go, girl!” is *not* etched into stone above the entrance to the Supreme Court Building.
These words are: “EQUAL JUSTICE UNDER LAW”
Your purpose as a Supreme Court Justice is *not* to “express your feels.”
It is to faithfully apply the Constitution so “that the due administration of justice is the strongest cement of good government . . .” (Washington)
You are a pox on the culture. Please quarantine yourself in a “safe space” and stay there.
Justice Jackson views herself primarily as a social media folk hero.
The Constitution, the actual text of statutes, are annoying distractions to her.
How did the Republicans allow the appointment of this Court Jester ?
If a Republican voted against Ketanji they would have been branded a “racist” and that would have hurt their feelings.
“If a Republican voted against Ketanji they would have been branded a “racist” and that would have hurt their feelings.”
They’ll be called a racist either way. I’ve always been amazed that these idiot squishes don’t see that basic fact. Just do the right thing. This person should never have been allowed on the court.
Same reason the Democrats allowed the Trump ass kissers to join the court.
“Trump ass kissers”
Also known as justices that have the intelligence and temperament to actually apply the law and the Constitution correctly to the cases before them.
“Same reason the Democrats allowed the Trump ass kissers to join the court.”
No, it’s because despite the theatrics and laughable smear jobs, the Democrats simply lacked the votes to stop Trump’s obviously qualified appointments.
To the libs, the law is not black and white. It is simply a guideline that can and should be overruled by “feelings”. A mind is a terrible thing to waste.
Or, as Dan Quayle once said in a similar situation to this one (and which should be directed at the judge “It is a terrible waste to lose one’s mind.”
I am bewildered that an individual so lacking in knowledge of the law and the United States legal system could ever be appointed as a judge, or a justice on the Supreme Court. This was evident from her confirmation hearing, the most famous incident being when she was asked by Senator Marsha Blackburn, “What is a woman?” Her evasive non-answer to that question should have confirmed that she may have been unqualified for becoming a Supreme Court justice.
I think every Senator who voted “Yes” to confirm her to the Supreme Court should be ashamed of themselves.
Every democrat and three traitorous republicans. Romney, Susan and Lisa!
I truly hope Justice Jackson will continue “to tell people in my opinions how I feel about the issues.” Her doing so will be “a wonderful opportunity” to demonstrate that legal scholarship, not immutable physical characteristics, should be the guiding principle when a President nominates someone to the Supreme Court.