Ketanji Brown Jackson Is Starting to Make the Supreme Court's Puppeteers Nervous

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Justice Ketanji Brown Jackson is building a convincing case against the Supreme Court's conservative wing, and congressional Democrats could stand to learn from her. On this week's Amicus podcast, Dahlia Lithwick talked with Sen. Sheldon Whitehouse of Rhode Island about what the high court's most junior justice is trying to teach us about the judiciary and institutions and naming the problem. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: I wanted to ask you about the thread you posted to X and Bluesky about Justice Ketanji Brown Jackson last week. I think it's fair to say her dissents have become a defining theme at the end of this Supreme Court term?

Sen. Sheldon Whitehouse: What struck me the most was Jackson pointing out some of the patterns at the Supreme Court. You and I have both been looking at this court for a long time, and we have noticed these patterns. For example, you can pretty much bet for sure who's going to win a case based on which side the fossil fuel industry is on, or which side has the usual suspects in the flotilla of front-group amici all showing up—they may not get everything they want, but you know where the decision is going to go in advance. If you look at who's behind those phony front groups and you start to look at how they're funded, there's another pattern. And then you can look at the way the court doesn't do a good job with its own internal ethics.

The right-wing justices want the court to be focused on the pure, narrow little specific legal issues within the four corners of the case. But Jackson has started to look around and put decisions in the context of other decisions and the patterns and predispositions the court has, and she's starting to call out those patterns and predispositions.

The court has taken really unfair advantage of the Democratic appointees by them expecting to adhere to traditions of collegiality, even while their colleagues are violating serious judicial principles and practices. The conservative majority is expecting Justices Sotomayor, Kagan, and Jackson not to call out what they're seeing in front of them, because that would be uncollegial .

There's a flip side to the corner of collegiality: You're supposed to behave in a sufficiently respectable way that you're not abusing or taking advantage of your colleagues' collegiality.

Jackson is coming out of the box and starting to note those things in his decisions. That has set off the right wing big time, and it has started to annoy the conservative justices, but to me it's the right thing to do. How long can you expect a Supreme Court justice to ignore what's happening right in front of them, right in their courthouse, and not write about it when it so obviously bears on outcomes?

One of the patterns is this statistical reading from Stanford's Adam Bonica , which shows that when lower courts block Trump administration policies, SCOTUS intervenes on the emergency docket in 77 percent of the cases, but for the Biden administration, that number is... zero. There is a willful blindness from a court that says, We are just rendering a decision on the utility and constitutionality of universal injunctions , without looking at this pattern. If you are just looking at cases in isolation as though this is a chemistry lab, you are missing the patterns, and there's no institution that can hold the court to the patterns because Congress isn't doing the work.

And yet there are plenty of cases brought in courts across the country where bias, prejudice, and discrimination are the actual subject of the case. Lawyers prove those cases with evidence of pattern. So in this big corporation, every time a white person applies for a promotion to this job, they get it 82 percent of the time, and when a Black person makes the same application, they get it 7 percent of the time. You take those facts of pattern to a jury, and you win based on pattern evidence, based on that demonstration that there's more going on here. You can conclude from patterns about intent and about bias. That's a common litigation strategy upheld over and over and over and over again, so why not apply the same type of analysis to the Supreme Court's proceedings? It's exactly what you would do if the court were a corporation and you were bringing a case against the court for being biased, for having prejudice, for being discriminatory.

I also think what she's trying to do is to make that which is not visible. What she's trying to say is: Here are the patterns you don't see . One of the things that is so profoundly disturbing this term is that we have a shadow docket where unsigned, unreasoned decisions are coming down, judges are struggling to understand what the doctrine is, because all we have is an order. The Supreme Court still deftly stage-manages its performance of doing justice, leading many to believe that the term ended with finality at the end of June and that the last decision of any consequence was birthright citizenship. But the emergency decisions keep pouring out, without argument, without briefing, without reasoning of any sort, without knowing who is on what side. That's part of what she is railing against. It's as if she's saying, I am pouring sunshine onto this institution because people say there's nothing they can do about it, or they don't understand it, because they can't see it .

I think what's dangerous for the right-wing justices here—the Leonard Leo justices, the Koch brothers justices—is that there's a lot to look at. And once Jackson pulled back to look at all this stuff outside the immediate four corners of the question in front of them, that could go a lot of places. Nobody knows this better than the court-packing crowd—Leo and all the groups around him, the folks who have paid for all this . Everybody involved in that machinery must have alarm bells going off right now because Jackson has pulled back the curtain.

If the big takeaway of this past SCOTUS term was that it represented another victory for Supreme Court judicial supremacy, you're adding this important idea that this court refuses to be held in judgment by anyone else: It won't let you do it, and it won't let the public do it, and it won't let the academy do it, and it won't let journalism do it.

But now one of its own members is doing it, and the justices want that collegiality thing—where you don't look up at the pattern, you don't look up at the bias. You just pretend that each one of these cases is its own isolated, solitary thing and there's no through thread, there's no narrative, and that's just preposterous at this point.

So it's not just a collegiality issue, as you are putting it. It's sort of magical thinking—pay no attention to the pattern behind the curtain. There isn't an institution that is able to hold it in judgment, and Jackson is breaking out from that.

And what if she does more? What if she starts doing research back into doctrines like major questions, and who funded the right-wing think tanks where that doctrine was grown and fertilized and watered for all those years, until it got Federalist Society–ed into briefs in the court and the court picked it up? What if she starts looking at the patterns of the flotillas of right-wing front groups and how frequently what they want is done by the court? What if she compares that to why the court isn't requiring those groups to disclose who's funding them, despite research showing that they actually have common funders? And you could actually look at this as being a violation of the court's rules against multiple amici all coming in without disclosing that they're the same people. Maybe she looks at that next. It's hard to know where she goes next—and I think that's why they're so spooked by her.