Since her confirmation in 2022, Justice Kentaji Brown Jackson has established a legacy that is fast becoming
one of the most radical in the Court’s history. Her sole dissents have drawn sharp criticism from both her
conservative and
liberal colleagues. However, for critics of some of these decisions, Justice Jackson continues to publish opinions that are not just, as she describes it,
cathartic but chilling. Worse yet, the latest judicial jump scare was shared by her colleague, Justice Sonya Sotomayor, in her concurring opinion in United States v. Hemani.
At issue in the case was an effort to prosecute Ali Hemani for recreational use of marijuana, a prosecution that threatened up to 15 years and to strip him of his gun rights under 18 U.S.C. § 922(g)(3)
Writing for the majority, Justice Neil Gorsuch ruled that the provision was not “consistent with the Second Amendment.” Gorsuch noted that Hemani was not alleged to be a drug addict or to have used his guns in a menacing manner.
Gorsuch wrote that the “historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways.”
However, Jackson used the concurrence to argue for overturning NYSRPA v. Bruen, a case critical to laying the foundation for interpreting the Second Amendment based on historical precedent. Jackson lashed out at the”‘history and tradition’ metric” and called for the Court to “revisit” the case.
Declaring Bruen “unworkable,” Jackson called for the restoration of the “means-end scrutiny—the approach courts applied before we adopted Bruen’s ‘history and tradition’ metric—offers a more rational way of assessing the constitutionality of firearm regulations.”
The reason for undoing Bruen? According to Jackson, “it imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions,’ and ‘applying those answers to resolve contemporary problems.'”
Justice Jackson added that “Given those challenges, it is unsurprising that Bruen’s test is vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws.”
The burden of actually seeking to understand the intended meaning of a constitutional provision is certainly greater than the more free-style approach of Jackson who focused on how to “resolve contemporary problems” under a living Constitution. However, to suggest that her outcome-determinative approach is less inconsistent and arbitrary is only true when you control the Court with justices who have like-minded “solutions” for contemporary problems.
That is precisely what many Democrats have in mind as they openly pledge to pack the Court with an insistent liberal majority if they can retake power. Moreover, Jackson is often cited as the model of the left, a justice who is unburdened by the language and history of constitutional provisions.
Just last week, liberal Wisconsin State Supreme Court justices heralded Jackson’s approach in arguing for the restoration of race-based gerrymandering. The state jurists lamented not being able to interpret the Constitution to address the “harms this country has caused to those who are marginalized, disempowered, or disenfranchised,” including the “preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds.”
These federal and state Supreme Court opinions are a glimpse into what awaits the country if Democratic leaders carry out their threat to take over the Supreme Court by adding four liberal justices in the image of Justice Jackson.
It is not simply the desire to immediately overturn prior cases but to establish a largely untethered jurisprudence driven by judicial fiat and impulse. It is certainly an easier way to write opinions and would clear the way for a stated agenda on the left to maintain power indefinitely.
Before voters “unburden” these jurists, they need to seriously consider the costs of eviscerating an institution that has been vital in maintaining this Republic for the last 250 years.
Here is the opinion: United States v. Hemani
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
We know what the Living Constitution is because we have been under it before. Basically it will come down to the judge and not the Consitution. And this comes from the most irrational judge who is trying to make a case for a different approach to rationality and untethered to anything that has gone before. You won’t need constitutional amendments because the “Living Constitution Judge” will provide the 1 stop shopping of executive, legislative and judicial fiats in a single individual.
When you care only about outcomes, you get German Jurisprudence of the 1933-1945 era and that turned out so well.
If you have the Living Constitution, then the Presidency ( like Andrew Jackson) will adjust and simply ignore the court. That, of course would simply lead to chaos and that is what the present progressives desire. Nothing like chaos or an emergency to use as a means of achieving permanent power
With all the judges and lawyers of AfricanAmerican heritage to nominate for the vacant seat on the USA’s Supreme Court for biden to repay Clyburn, the USA is stuck with Jackson. Because of Clyburn and with the control by biden’s puppeteers … the worst possible DEI hire for the Court.
I am truly scared what the Democrats will do when they win.Bad,really Bad.
Scared? Scared of not saying what they will do.
Suddenly leftwing Fascists don’t remember stare decisis anymore. Amazing.
The left aren’t hiding it anymore. We have to disavow ourselves of the notions of the mythical classical liberal or center left, it’d be easier to ride a unicorn than to find one of those. There are no democrats in Washington, just a regime. Really – everything hangs by a thread with *every* election, and we can’t give any of this a pass.
Every time Jackson shows up in a Turley opinion you trot out the same comment.
The left? Try those on the right too. Her opinion is also shared by her conservative colleagues. This is not a “radical” position at all. Even the conservative justices admit the historical standard poses problems.
And what justices are those?
Amy Coney Barrett, Roberts, Kavanaugh, and Gorsuch. The all have expressed the same view as Jackson.
Ketanji’s “Unhinged Melody” can be summed up by four principles: a. Unfettered by the law, b. Unburdened by history and tradition, c. Inconsistent and arbitrary, d. Whatever the ultra-left supports, Ketanji supports. If there has ever been a case against DEI, it is embodied in Ketanji Brown Jackson.
It would be a simple exercise for a firm like Anthropic to train a Ketanji-version AI based on her principles, along with a list of cases to overturn. It could even turn out official-looking opinions at the rate of two or three per second. Gone is the need to pack the court; just eliminate it altogether.
The reason for undoing Bruen? According to Jackson, “it imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions,’ and ‘applying those answers to resolve contemporary problems.'”
I will take bets that on the birthright citizenship case she does just that. With gusto.
At least yo can quote Turley without issue, now see if you can think through Jackson’s reasoning without plagerizing.
Every time Jackson issues an opinion she exposes her lack of judicial knowledge, the law, case law, her ignorance and her stupidity. No matter how long the Republic lasts, she will go down as the worst justices in US history.
@Anonymous
That might be true if the left had any intention of honoring our system or even history itself; they don’t, and our system isn’t self-sustaining – that’s up to us. It would be a tough call if the entire court were giving her a run for her money, and that could conceivably happen.
I don’t know that she lacks judicial knowledge, case law, or precedent.
She made it clear in this case that she does not care about those things. She ONLY cares about outcomes.
==========
I think the media has conditioned the public to see major cases in terms of outcomes. The story is often framed as who won or who lost the case. “Trump wins at Supreme Court” or “Trump loses case”.
They should be framing the stories as explanations for WHY the court came to the conclusion it did, rather than the outcome.
Professor Turley singles out Justice Jackson for criticism while avoiding the fact her views are not as ‘radical’ as he wants his readers to think. As usual he “neglected” to mention this was a unanimous decision, 9-0.
If this was truly a “radical” position the professor “forgot” to mention that even Justice Jackson’s conservative colleagues share the same views about interpreting Bruen. He left out Justice Gorsuch expressing the same view. Gorsuch’s majority opinion highlights how difficult and arbitrary it is to force modern courts to find precise 18th-century historical matches for modern laws. To those who are not familiar with what the word “concurring” means, it is her way of adding “I agree with the majority opinion, here’s my addition to it”.
Professor Turley also “forgot” to mention Justice Amy Coney Barrett also expressed concerns that forcing judges to act as amateur historians creates an “unworkable” standard that yields inconsistent results across lower courts.
Chief Justice John Roberts & Justice Brett Kavanaugh both have expressed institutional concern over the chaotic, unpredictable ways lower courts have interpreted the Bruen historical standard.
This is far from a “radical view” according to Turley.
For example Justice Amy Coney Barrett’s concurrences in Rahimi and Vidal align with concerns regarding the “history and tradition” standard established in Bruen by highlighting the unworkability of forcing judges to act as historians. She has argued that this method invites litigants to cherry-pick historical evidence and warns that over-reliance on the past risks ignoring necessary modern context.
Roberts rebuked the lower courts (specifically the Fifth Circuit) for acting as if a modern gun law requires an exact replica from the 1700s to be valid. He clarified that the standard only requires a “historical analogue,” not a “historical twin.”
Justice Kavanaugh has consistently worked to limit the scope of Bruen, arguing that the historical framework should not be used to completely dismantle the regulatory power of the state.
This article is about attacking Justice Jackson because of who she is, a Biden appointee, who is a handy punching bag for legal illiterate conservatives just wanting to denigrate the justice because it’s easier than acknowledging the fact she is a standout in her opinions because she has a different point of view. There’s absolutely nothing wrong with that, but it sure makes for a handy way to keep the ‘rage’ going for the MAGA crowd.
her views are not as ‘radical’ as he wants his readers to think. Really? And you want everyone to think the others SCOTUS are the radicals? Good grief George you are a mental midegt.
No, her views are not radical. They are different. Turley likes to use inflammatory language to make things look more extreme than they really are for YOUR consumption.
When the court had a liberal majority the conservatives held “radical” views too. Justice Thomas and Scalia’s views were “radical” compared to the majority when they were in the minority.
Funny thing to say, because even the conservative justices have made the same “radical” views she expressed in her concurring opinion.
In this case she’s agreeing with the majority a 9-0 ruling.
How is that “radical”?
Based on the timing of your comment, seems to me you’re commenting to yourself. Did you mean post that comment as an anonymous George? Not the first time eh?
No, the comment was not following an other commenter’s post. The blog has had issues with that often.
Every time? Don’t see any knowledge in your comment just white boy racism.
Here we go again.
And there goes dustoff again. What’s the matter, Turley too dense for you?
BIDEN