In Mullin v. Friends of Ruidosa Church, the Supreme Court just lifted the injunction on the Administration’s effort to go forward with the completion of a border wall through the Big Bend region of West Texas. The issue should not be the policy merits. There are good-faith arguments against the wall in such areas. Indeed, outgoing Sen. John Cornyn (R-TX) wrote an op-ed against the project. However, the sole question before the Court was the authority of a president to order the construction and use of statutory waivers to do so. Eight out of nine justices voted that “the Government is exceedingly likely to prevail on its argument that the District Court lacked jurisdiction.” Once again, the sole holdout was Justice Ketanji Brown Jackson, who did not explain her position.
In its unsigned five-page decision, the eight justices ruled that the 1996 immigration law gave the Homeland Security secretary wide discretion to waive environmental rules. There was no constitutional challenge. Instead, this is a straightforward statutory interpretation matter on whether Congress gave this discretion to the executive branch and whether that authority was then used in conformity with federal law.
Then-Homeland Security Secretary Kristi Noem signed the first of three waivers over the Big Bend sector. Secretary Markwayne Mullin continued that policy by signing two additional waivers based on his determination that they were “necessary to ensure expeditious construction” of border barriers under IIRIRA §102(c)(1).
U.S. District Judge Kathleen Cardone issued the injunction on October 2.
As shown by the eight-justice majority, it is hard to see how Judge Cardone, a George W. Bush nominee, thought that the high standard for this injunction was met. She seemed to delve into policy in finding that Congress likely never authorized waivers in a sector where crossings are so low. That is a judgment on the merits of the waiver that the justices clearly viewed as exceeding the authority of the courts in our system of the separation of powers.
Justice Ketanji Brown Jackson was the only one who said she would have turned the administration down. She did not explain why.
Justice Jackson’s sole dissents have drawn considerable criticism not only from many experts but also from her conservative and liberal colleagues.
I have previously described some of Jackson’s jurisprudence as “chilling.”
In the injunction litigation in Trump v. CASA, Jackson seemed to go out of her way to echo the “democracy is dying” narrative of the far left in picking up on the “No Kings” theme. She warned 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 happens 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.”
Notably, in the calls to pack the Court with a liberal majority, politicians and pundits often point to Biden-appointee Justice Ketanji Brown Jackson as the model. Jackson has been widely criticized for a radical jurisprudence that discards long-standing norms and doctrines. If that is the model for a new majority on the Court, the far left could well achieve its long agenda on radical changes to our constitutional system.
The sole dissent in this case only magnifies those concerns.
Jonathan Turley is the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.” He teaches a course on the Constitution and the Supreme Court.
we need to STOP judging people on RACE and Gender. Jackson is stupid…no matter her color or gender. She was selected SOLELY on her race and gender!
Stupid enough to be a SCOTUS justice. You?
DEI thinking…isn’t thinking. She should be REMOVED
Should? Why?
When it comes to Justice Ketanji Brown Jackson, any serious argument must address the distinction between malice and stupidity. Malice (or evil) tends to leave people uneasy; it carries the seeds of its own undoing, and society has established ways to protest or resist it by force. Stupidity, by contrast, leaves people largely defenseless. Reason fails against it, contradictory facts are dismissed as irrelevant, and even irrefutable evidence is ignored.
Jackson appears to straddle both. She seems plainly ignorant of the law, and disregards settled legal principles and evidence about how it is properly applied. She has repeatedly diverged from even her most liberal colleagues on the Court, and she often appears unfamiliar with the details of the statutes and precedents she rejects. Some dismiss this as mere “activism,” but activism of this kind is precisely the combination of malice and stupidity. You cannot reason with her or even get her to acknowledge basic facts. She also appears to favor something closer to a DSA-style constitution, which points at least toward malice
Jackson is doing what she was hired to do. Disrupt. You can’t understand that?
Come on MAN – Ketanji be like standin up to the SLAVERS, RACISTS, COLONIALISTS, and MISOGYNISTS!! Time to tear up the document of oppression by the MAN and go with chaos, anarchy, and gang justice! Idiot ONE TRICK PONY!! Thanks BIDEN you moron!!
Biden’s legacy
This is wild. Is Professor Turley genuinely blind to the facts, or is he just being disingenuous as usual?
This case perfectly highlights the blatant double standard the Supreme Court’s conservative majority applies to the executive branch. Justice Jackson’s dissent is nowhere near as “radical” as Turley claims; in reality, she simply noted her disagreement without writing an opinion. Naturally, Turley fills that silence with baseless assumptions to manufacture a narrative that isn’t supported by evidence. It is classic Turley.
Furthermore, the Court appears to have completely abandoned the non-delegation doctrine. In previous high-profile cases involving Democratic administrations, the conservative justices explicitly ruled that Congress must be hyper-specific about the powers it delegates to federal agencies. Yet here, the Department of Homeland Security is exercising sweeping, unchecked authority based on a remarkably broad interpretation of a statutory waiver. This is exactly the kind of massive executive overreach the non-delegation doctrine is supposed to prevent. Turley conveniently brushes past this entire constitutional crisis with his customary disclaimer that “there are good-faith arguments” against the wall, completely masking the legal hypocrisy at play.
Turley eagerly frames Jackson’s silent dissent as a terrifying example of an “imperial judiciary” pushing a “radical far-left agenda,” yet he completely ignores the actual legal mechanism deployed by the district court. He refuses to dive into the details of the statute or the merits of the case because doing so would expose the Court’s double standard. Justice Jackson is clearly aware of this hypocrisy, which is precisely why she dissented.
Because Jackson did not provide any text for him to attack in Mullin, Turley relies on a disingenuous bait-and-switch tactic. He reaches back to a completely separate, previous case (Trump v. CASA) to pull quotes about a “rule-of-kings governing system” and cynically superimposes them over her silent vote in this case. Lacking a sound legal argument to support the Court’s flawed ruling, Turley relies on a reliable distraction: attacking Justice Jackson. He knows his audience will eagerly consume the partisan bashing of a liberal justice. It is as lazy as it is convenient.
Having been declared a loser in her reelection bid, Rep. Lauren Boebert on Tuesday called for a manual recount of the votes, telling reporters, “I favor a hand job.”
“This recount should not be conducted in secrecy,” Boebert said. “What is needed is a hand job, with plenty of people around to watch.”
Asserting that the voters “deserve to be satisfied,” she declared, “A hand job is the surest way to guarantee a happy ending.”
Why do people who love the Constitution abhor the idea of “no kings”?
That was the whole point.
say the people who were fine with Biden being King…and EVERY Democrat Governor literally murdering the people of their state by EDICT!
THE DUMBESTperson to ever sit on ANY bench.Dumbest you say? Explain your reasoning then?
Justices must make decisions based on the law on the books. Justice Jackson’s way of thinking seems to be a bit skewed at times.
Law only, what about Precedence? Jackson is doing what she was hired to do. Disrupt.
OT
Hakeem Jeferries and Thune may be approaching the FO phase of FAFO.
In declining a nomination to SCOTUS by James Madison, John Quincy Adams wrote to his brother:
“I always shall be too much of a political partisan to be a judge…and although I know as well as any many in America how and when to lay the partisan aside, I do not wish to be called often and so completely to do it as my own sense of duty would [require] were I seated upon the bench.” (Kaplan, Fred (2014). John Quincy Adams: American Visionary (1st ed.). HarperCollins Publishers. pp. 270 and 271. ISBN 9780061915420.)
Maybe that reasoning should serve as the basis of questions to future nominees – from both parties
Whig98,
Good quote. I wish more judges thought that way but they seem to headed in the direction of Robespierre.
From both parties? Has your head been buried in the sand for the last 20 years? Nay, the last 250?
God Bless Justice Jackson!
…says her mother.