Pushing Ideology over the Constitution

A Supreme Court judge recently accused a colleague’s dissents of being not “just a legal disagreement, but an existential threat to the (US) constitution.”

In what you might view as a troubling shift in the role of the justices, Justice Ketanji Brown Jackson’s recent dissents, particularly in Trump v. Casa, shows what is meant by “a troubling shift in the role of a justice.”

As Charles C. Cooke writes in NRO, the Supreme Court is not the proper venue for Ketanji Brown Jackson’s “feelings.” Justice Jackson has managed to set herself apart … by declining even to pretend that she understands the purpose of her job.

Among words that just don’t belong are “feel” and “should.”   According to Cooke, “should” is the preserve of the voters, of Congress, and, within its limited realm, of the presidency. It is not the job of a judge who, properly construed, must be confined to “is.”

Our Constitution tells us how our government works, and the statutes passed by Congress and the states fill in the rest.

If you disagree with the fruits of either, one may lobby for an amendment under Article V, or, at the legislative level, one may push for a change to the law. One cannot, under any circumstances, demand that a friendly judge substitute what is for what she believes ought to be.

The Integrity of the Court

Dissent is a vital tool to the integrity of the Court, adds David Sypher, Jr. in SpectorWorld.

The late Antonin Scalia built an entire legacy on it – scorching in tone, yes, but always grounded in jurisprudence. Even Justice Sotomayor, who leans progressive, typically stays within the framework of legal analysis.

Jackson’s Dissents Feel Different

(Jackson’s dissents) are often infused with the emotional urgency of a political stump speech rather than the deliberative tone of a judicial opinion. That’s not a matter of style – it’s a matter of purpose.

As an example, refer to Trump v. Casa – a Trump-era executive order related to birthright citizenship.  Jackson went far beyond dissent, accuses Mr. Sypher, when she warned that the Court has opened the door to “uncontainable” executive power and “executive lawlessness.”

Jackson claims this decision places the very structure of American government at risk and goes beyond dissent by warning that the Court opened the door to “uncontainable” executive power and “executive lawlessness.”

If you’re wondering whether this sounds like a measured legal analysis or the script for a constitutional horror movie, you’re not alone.

Justice Amy Coney Barrett took issue with Justice Jackson’s tone as well as with her lack of doctrinal clarity.

Legal dissents, according to Justice Barrett, no matter how passionate, should be rooted in precedent, logic, and a serious engagement with the constitutional questions at hand. Jackson’s opinion reads more like a dire cable news commentary than a legal roadmap.

How do we square America’s democratic system of government with the awesome power of judicial review? Through judges who wield that power to subordinate their own preferences and stick steadfastly to the meanings that obtained when our laws were passed, insists Mr. Cooke.

Has Justice Jackson managed to set herself apart by declining even to pretend that she understands the purpose of her job?

Justice Elena Kagan’s opinions are the work of an intellectually brilliant apparatchik.

Justice Sotomayor’s are the product of a quotidian political hack who is not savvy enough to comprehend that we can all see through the ruse.

Justice Jackson’s are . . . well, she put it superbly herself: They are the merchandise of a figure whose desire is to “tell people, in my opinions, how I feel about the issues.”

Many ordinary citizens “feel” there is a crisis in our country. What is needed to overcome the threat to our rule of law is not louder dissents but better ones.