Ketanji Brown Jackson Has Absolutely Had It with Her Fellow Supreme Court Justices

Late on Tuesday, we had another missive from the mists of the Supreme Court's shadow docket—an unsigned opinion that confirmed for the moment the president's right to clear-cut the entire administrative structure of the Executive branch agencies and departments. From The Guardian:

Extending a winning streak for the US president, the justices on Tuesday lifted a lower court order that had frozen sweeping federal layoffs known as “reductions in force” while litigation in the case proceeds. The decision could result in hundreds of thousands of job losses at the departments of agriculture, commerce, health and human services, state, treasury, veterans affairs and other agencies.

In February, Trump announced “a critical transformation of the federal bureaucracy” in an executive order directing agencies to prepare for a government overhaul aimed at significantly reducing the workforce and gutting offices. In its brief unsigned order on Tuesday, the supreme court said Trump’s administration was “likely to succeed on its argument that the executive order” and a memorandum implementing his order were lawful. The court said it was not assessing the legality of any specific plans for layoffs at federal agencies.

Of course not. That would mean that the carefully manufactured conservative majority on the Supreme Court was carefully manufactured in order to advance right-wing policy goals and not simply to "call balls and strikes," as Chief Justice John Roberts once described his job. And, as Justice Ketanji Brown Jackson pointed out in her solo dissent, the majority's "We're not judging the president's actions, but we do think they're legitimate" argument was a shuck from start to finish.

"Given the fact-based nature of the issue in this case and the many serious harms that result from allowing the President to dramatically reconfigure the Federal Government, it was eminently reasonable for the District Court to maintain the status quo while the courts evaluate the lawfulness of the President's executive action. At bottom, this case is about whether that action amounts to a structural overhaul that usurps Congress's policymaking prerogatives—and it is hard to imagine deciding that question in any meaningful way after those changes have happened. Yet, for some reason, this Court sees fit to step in now and release the President's wrecking ball at the outset of this litigation."

Jackson has made it her brief to push back against the pronouncements of the shadow docket. And she clearly enjoys her work. From ABC News:

Justice Ketanji Brown Jackson, in her first public appearance since the Supreme Court sharply limited the ability of federal judges to check presidential power, said Saturday she believes recent rulings by the court's conservative majority pose an "existential threat to the rule of law." "Sometimes we have cases that have those kinds of implications, and, you know, are there cases in which there are issues that have that kind of significance? Absolutely," Jackson told ABC News Live Prime anchor Linsey Davis during a wide-ranging conversation at the Global Black Economic Forum.

Brown touched off a hooley on the bench with her dissent in Trump v. CASA, the case that many observers–including Brown and, well, me—see as a prelude for a move against the concept of birthright citizenship. Brown wrote that the decision would result in a situation in which “executive power will become completely uncontainable." Justice Amy Coney Barrett found this blunt mobilization of obvious truth so unbearably déclassé, she unleashed her inner Karen in response. This, in turn, prompted an interesting piece in The New York Times.

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.

Mercy me, questions are being raised. Can gathering clouds be far behind? However, the piece later is quite plain in calling out the obvious privilege behind Barrett’s suburban outrage.

Justice Jackson added her own dissent, speaking only for herself. She said 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.” That prompted an extended response from Justice Barrett, the next most junior justice and the author of the majority opinion. It did not stint on condescension.

Yoicks!

“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.”

The cynical mind suggests that it’s really Jackson’s outspoken opposition to the use of the shadow docket that is the real reason why the carefully manufactured conservative majority sent its newest member out to push back. Jackson’s patience with the shadow docket sleight-of-hand has run out.

“This fly-by-night approach to the work of the Supreme Court is not only misguided,” she wrote in April, when the court said that Venezuelan men the administration was seeking to deport to El Salvador had sued in the wrong court. “It is also dangerous.” In a dissent from an emergency ruling in June granting Elon Musk’s Department of Government Efficiency access to sensitive Social Security data, Justice Jackson accused the majority of giving Mr. Trump favored treatment. “What would be an extraordinary request for everyone else,” she wrote, “is nothing more than an ordinary day on the docket for this administration.”

Justice Jackson has a chance to be reckoned one day as the justice who rang all the alarm bells. If nobody listened, that's on them.