“I just feel that I have a wonderful opportunity.”
Those words of Justice Ketanji Brown Jackson came in a recent interview, wherein the justice explained how she felt liberated after becoming a member of the Supreme Court “to tell people in my opinions how I feel about the issues. And that’s what I try to do.”
Jackson’s sense of liberation has increasingly become the subject of consternation on the court itself, as she unloads on her colleagues in strikingly strident opinions.
Most recently, Jackson went ballistic after her colleagues reversed another district court judge who issued a sweeping injunction barring the Trump Administration from canceling roughly $783 million in grants in the National Institutes of Health.
Again writing alone, Jackson unleashed a tongue-lashing on her colleagues, who she suggested were unethical, unthinking cutouts for Trump. She denounced her fellow justices, stating, “This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this administration always wins.”
For some of us who have followed Jackson’s interestingly controversial tenure on the court, it was crushingly ironic. Although Jackson accused her colleagues of following a new rule that they must always rule with Trump, she herself is widely viewed as the very embodiment of the actual rule of the made-up game based on the comic strip of Calvin and Hobbes. In Jacksonian jurisprudence, it often seems like there are no fixed rules, only fixed outcomes. She then attacks her colleagues for a lack of integrity or empathy.
To quote Calvin, Jackson proves that “there’s no problem so awful that you can’t add some guilt to it and make it even worse.”
Jackson has attacked her colleagues in opinions, shattering traditions of civility and restraint. Her colleagues have clearly had enough. She now regularly writes diatribes that neither of her fellow liberals — Justices Sonia Sotomayor or Elena Kagan — are willing to sign on to. Indeed, she has raged against opinions that her liberal colleagues have joined.
Take Stanley v. City of Sanford. Justices Jackson and Neil Gorsuch took some fierce swings at each other in a case concerning a retired firefighter who wants to sue her former employer. The majority, including Kagan, rejected a ridiculous claim from a Florida firefighter who sued for discrimination for a position that she had neither held nor sought. The court ruled that the language of the statute clearly required plaintiffs to be “qualified” for a given position before they could claim to have been denied it due to discrimination. (Stanley has Parkinson’s disease and had taken a disability retirement at age 47 due to the progress of the disease.)
Jackson, however, was irate that Stanley could not sue for the denial of a position that she never sought, held, or was qualified to perform. Jackson accused the majority of once again showing how “pure textualists can easily disguise their own preferences as ‘textual’ inevitabilities.” It was not only deeply insulting, but perfectly bizarre, given that Kagan had joined in the majority opinion. Kagan is about as pure a textualist judge as she is a pure taxidermist.
Gorsuch called Jackson out for once again ignoring the text of federal laws in order to secure the result she preferred in a given case. In other words, Jackson was playing Calvinball with the law.
Jackson, undeterred, has continued these diatribes, with escalating and insulting rhetoric. In Trump v. CASA, the court sought to rein in district courts issuing sweeping injunctions over the Executive Branch. Jackson went ballistic in her dissent, which neither Sotomayor nor Kagan would join.
Jackson accused her colleagues of blindly drifting toward “a rule-of-kings governing system.” She denounced the majority for “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.”
This is where Justice Amy Coney Barrett reached a breaking point, unleashing on Jackson in an opinion notably joined by her colleagues. Barrett noted that Jackson was describing “a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush.” 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.”
That is a slightly fancier way of describing Calvinball.
Jackson has also been criticized for making dubious or sensational claims, as in her opinion supporting affirmative action in higher education.
Jackson’s jurisprudence is the very model of a judiciary untethered from constitutional or institutional restraints. Not surprisingly, she is lionized in law schools for her rejection of judicial restraint and her pursuit of progressive outcomes. Yet, her approach is becoming increasingly lawless.
I truly believe that Jackson can leave a lasting legacy and bring an important voice to the court. However, this is one “wonderful opportunity” that Justice Jackson may want to let pass more often. Otherwise, she risks fulfilling that other lament from the cartoon Calvin: “I find my life is a lot easier the lower I keep everyone’s expectations.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”
