Lone Supreme Court Voice, Making Waves & Alienating the Conservative Majority

Lone Supreme Court Voice, Making Waves & Alienating the Conservative Majority

I find myself backing Harvard and Harvard graduates these days with increasing frequency. As a Yale grad, I’ve long since stopped biting my figurative tongue, finding community and resonance with that Cambridge “cabal.” Just to make my biases even clearer than they already are: I call the current assembly of Supreme Court, the “Corruption Court,” based on the blatant conflicts of interest that are ignored and the luxury “gifts” to certain members of that panel from interested parties. I will note that my view does not apply to Amy Coney Barrett or to Ketanji Brown Jackson, the two newest members of the bench. As much as Justice Jackson is Harvard undergrad and law school, Justice Barrett is Notre Dame all the way.

Jackson is part of the liberal troika on the Court (along with Sonia Sotomayor and Elana Kagan), while Coney Barrett, a devoted Roman Catholic who often imposes her religious beliefs into her opinions, is part of the Court’s six-member conservative majority, a group that has favored Donald Trump’s domination and control of the nation at virtually every turn.

Barrett clerked for Justice Antonin Scalia (since deceased), who embraced the most bizarre doctrine of contextual “originalism,” a notion that any constitutional interpretation by a court is limited to the historical context existing at the time that the relevant constitutional provision was passed. Hence, regulating an AR-15 must be reviewed within the context of flintlocks and muskets (which was the firearm status quo when the 2nd Amendment was passed). Harvard law-educated Scalia is notorious for his oft-repeated statement, like the one he delivered in a 2013 speech at Southern Methodist University, discussing the Constitution: “It’s not a living document. It’s dead, dead, dead.” Barett is a total devotee of her mentor, Antonin Scalia.

Today, this blog is visiting that lone liberal voice, sounding a consistent warning about the Court’s rightward “whatever Trump wants” drift. Ketanji Brown Jackson. I will note that throughout American history, those lone vociferous minority positions have often redefined the United States, time and time again. Something a long time, and time again. I believe that Justice Jackson just may be that voice of the future. As Adam Liptak, writing for the July 5th New York Times, describes her: “Justice Ketanji Brown Jackson wrote just five majority opinions in the Supreme Court term that ended last month [June], the fewest of any member of the court. But her voice resonated nonetheless, in an unusually large number of concurring and dissenting opinions, more than 20 in all.

“Several of them warned that the court was taking lawless shortcuts, placing a judicial thumb on the scale in favor of President Trump and putting American democracy in peril. She called the majority’s opinion in the blockbuster case involving birthright citizenship, issued on the final day of the term, ‘an existential threat to the rule of law.’… Her opinions, sometimes joined by no other justice, have been the subject of scornful criticism from the right and have raised questions about her relationships with her fellow justices, including the other two members of its liberal wing.

“‘She’s breaking the fourth wall, speaking beyond the court,’ said Melissa Murray, a law professor at New York University. ‘She is alarmed at what the court is doing and is sounding that in a different register, one that is less concerned with the appearance of collegiality and more concerned with how the court appears to the public.’

“Her slashing critiques sometimes seemed to test her colleagues’ patience, culminating in an uncharacteristic rebuke from Justice Amy Coney Barrett in the case arising from Mr. Trump’s effort to ban birthright citizenship. In that case, the majority sharply limited the power of district court judges to block presidential orders, even if they are patently unconstitutional…

“She has been particularly active in filing concurring opinions — ones that agree with the majority’s bottom line but offer additional comments or different reasoning… Indeed, she has issued such opinions at the highest rate of any member of the court since at least 1937, according to data compiled and analyzed by Lee Epstein and Andrew D. Martin, both of Washington University in St. Louis, and Michael J. Nelson of Penn State.

“She has also been active in dissent. Chief Justice John G. Roberts Jr. did not write his first solo dissent in an argued case until 16 years into his tenure. Justice Jackson issued three such dissents in her first term… Marin Levy, a law professor at Duke, said Justice Jackson had been doing two things in her dissents: ‘The first category concerns standard disagreements on the merits,’ Professor Levy said. ‘The second category feels quite different — I think here we see dissents in which Justice Jackson is trying to raise the alarm. Whether she is writing for the public or a future court, she is making a larger point about what she sees as not just the errors of the majority’s position but the dangers of it as well.’”

Ms Jackson’s dissent in the recent decision to limit individual federal trial court justices’ from issuing nationwide injunctions against perceived unconstitutional misconduct – saying that the majority imperiled the rule of law, creating “a zone of lawlessness within which the executive has the prerogative to take or leave the law as it wishes” – drew the ire of Coney Barrett: “Justice Jackson added her own dissent, speaking only for herself… ‘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,’ Justice Barrett wrote, in an opinion signed by all five of the other Republican appointees… ‘The principal dissent focuses on conventional legal terrain,’ Justice Barrett went on, referring to Justice Sotomayor’s opinion. ‘Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.’” NY Times. For me, Justice Barrett’s criticism appears more like the pot calling the kettle black. I fail to see that roiling logical litany of two centuries of cases that Barrett alluded to.

Oh, and on July 8th, the Supreme Court’s shadow docket produced another Trump giveaway, although individual decisions on the merits, case-by-case, can still stop wrongful federal layoffs. In an 8-1 vote, the justices lifted an order from a federal judge in San Francisco who blocked mass layoffs at more than 20 agencies. Once again, a lone dissent from Justice Jackson noted: ““Under our Constitution, Congress has the power to establish administrative agencies and detail their functions.” Hence ceding that power to the President was incorrect. That woman has guts… and I admire her more every day. The Trump administration went on a layoff frenzy… immediately.

I’m Peter Dekom, and I cheer Justice Brown Jackson on, with a parallel belief that, if this nation indeed survives, her vision will reflect who we become.