Turley: The Chilling Jurisprudence Of Justice Ketanji Brown Jackson

Authored by Jonathan Turley,

For most citizens, the release of Supreme Court opinions is about as exciting as watching paint dry, particularly in a case dealing with the limits of district courts in issuing universal injunctions.

Yet Friday’s Trump v. CASA case included a virtual slugfest between Justice Amy Coney Barrett and Justice Ketanji Brown Jackson.

The decision was one of the biggest of the term. The Court moved to free the Administration from an onslaught of orders from district judges seeking to block the President in areas ranging from the downsizing of government to immigration.

However, it was the departure of the normally staid court analysis that attracted the most attention.

The tenor of Jackson’s language shocked not just many court watchers, but her colleagues.

It seemed ripped from the signs carried just a couple of weeks earlier in the “No Kings” protests.

The Court often deals with issues that deeply divide the nation.

Yet it tends to calm the waters by engaging in measured, reasoned analysis — showing the nation that these are matters upon which people can have good-faith disagreements.

But that culture of civility and mutual respect has been under attack in recent years.

Not long ago, the Court was rocked by the leaking of the draft of the Dobbs decision overturning Roe v. Wade. That was followed by furious protests against conservative justices at their homes and an attempted assassination of Justice Brett Kavanaugh.

There was also a change in the tenor of the exchanges in oral argument and opinions between the justices.

Recently, during the argument over the use of national injunctions in May, Chief Justice John Roberts was clearly fed up with Justice Sotomayor interrupting government counsel with pointed questions and commentary, finally asking Sotomayor, “Will you please let us hear his answer?”

This hyperbole seemed to border on hysteria in the Jackson dissent. The most junior justice effectively accused her colleagues of being toadies for tyranny.

It proved too much for the majority, which pushed back on the overwrought rhetoric.

While the language may seem understated in comparison to what we regularly hear in Congress, it was the equivalent of a virtual cage match for the Court.

Some of us have argued that our system is working just as designed, particularly as these issues work through the courts. The courts have ruled for and against this Administration as they struggle with the difficult lines of authority between the branches.

Liberals who claim “democracy is dying” seem to view democracy as getting what you want when you want it.

It was, therefore, distressing to see Jackson picking up on the “No Kings” theme, warning 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 happen 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.”

The last term has laid bare some of the chilling jurisprudence of Justice Jackson, including a certain exasperation with having to closely follow the text of laws.  (In an earlier dissent this term, Jackson lashed out against the limits of textualism and argued for courts to free themselves from the confines — or shall we say the “minutiae” — of statutory language). In this opinion, Barrett slams Jackson for pursuing other diversions “because analyzing the governing statute involves boring ‘legalese.’” Again, what Jackson refers to as “legalese” is the heart of the judicial function in constraining courts under Article III.

Untethered by statutory or constitutional text, it allows the courts to float free from the limits of the Constitution.

For many, that is not an escape into minutiae but madness without clear lines for judicial power.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the best-selling author of “The Indispensable Right.”