Undaunted in calling out the worst Supreme Court in modern times
KBJ won’t allow accept its pretense of impartiality
Justice Ketanji Brown Jackson has been the most clear-eyed, candid critic (on or off the Supreme Court) of the damage the majority of MAGA justices have inflicted on the court’s institutional credibility, the rule of law, and the lives of hundreds of thousands (if not millions) of Americans.
Her dissent on Tuesday to an order lifting the stay on a massive, unilateral reorganization of government hacks away at the procedural subterfuge that the majority (including two “liberals”) erects. It is typical of her no-nonsense critique of the court majority’s lawlessness:
What is at issue here is whether Executive Order No. 14210 effects a massive restructuring of the Federal Government (the likes of which have historically required Congress’s approval), on the one hand, or minor workforce reductions consistent with existing law, on the other. One needs facts to answer that critical question, and the District Court not only issued such preliminary findings based on actual evidence, it is also the tribunal best positioned to make that determination, at least initially. Put differently, from its lofty perch far from the facts or the evidence, this Court lacks the capacity to fully evaluate, much less responsibly override, reasoned lower court fact finding about what this challenged executive action actually entails. I respectfully dissent because, in addition to the Government’s failure to show the exigency or irreparable harm that is required for emergency relief, this Court could not possibly know in this posture whether the Government is likely to succeed on the merits with respect to such a fact-dependent dispute.
Jackson writes that the court ignores “55 pages of evidence-based lower court reasoning.” What is worse, she reiterates, is that “because the Court provides no explanation for its likelihood-of-success conclusion,” the reasons for throwing aside the district court’s fact-findings are “anyone’s guess.” This is not jurisprudence; it’s blocking and tackling for a dictatorial executive.
The victims of the Supreme Court’s cavalier attitude are never forgotten in her stinging dissents. This was no exception:
Consider the harms to democracy, too, if it turns out that the plaintiffs and the lower courts are right that the President is unilaterally changing the structure of the Federal Government. What one person (or President) might call bureaucratic bloat is a farmer’s prospect for a healthy crop, a coal miner’s chance to breathe free from black lung, or a preschooler’s opportunity to learn in a safe environment. The details of the programs that this executive action targets are the product of policy choices that Congress has made—a representative democracy at work. While the President no doubt has the authority to manage the Executive Branch, our system does not allow the President to rewrite laws on his own under the guise of that authority.
If this rings a bell, it is because the same predilection to swoop in, cast aside district court findings, and empower a hyper-partisan Supreme Court to “fix” hurdles to Trump’s unbridled exercise of power raised her ire in the nationwide injunction case. In both cases, the Supreme Court aggregated to itself the job of fact-finding district courts (as it did when disallowing nationwide injunctions) with no concern for the victims trampled in Donald Trump’s rampage through the Constitution.
In Trump v. CASA, she wrote:
It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior. When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution—please allow this. That is some solicitation. With its ruling today, the majority largely grants the Government’s wish. But in my view, if this country is going to persist as a Nation of laws and not men, the Judiciary has no choice but to deny it.
This week, Jackson also affirmed publicly her view that the Court itself poses 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,” she told ABC’s Linsey Davis at the Global Black Economic Forum.
She understands her role is not just to write for history (today’s dissents become future majority opinions) but to sound the alarm, to rouse the public. “I am actually heartened that people are focused on the court and the work that we’re doing on the state of the government,” she said.
“As a democracy, the people are supposed to be the rulers. The people are supposed to be leading in terms of the policies and the way in which our government operates.” She added that “the more that people are engaged with our institutions, the better.”
Perhaps, with her incisive analysis, support will grow for fundamental Supreme Court reform that will expand the court, impose term limits, and mandate ethics guidelines.
Jackson remains undaunted, unafraid, and unwilling to accept the contortions the current majority undertakes to further its partisan agenda and embolden a narcissistic autocrat with no regard for the rule of law. She may be short in stature, but she stands head and shoulders above her colleagues, refusing to join the kabuki dance that disguises radical partisans as neutral arbiters of law. We salute her undaunted integrity, while pining for the day when she gets a sufficient number of colleagues to reestablish the court’s historic role as a guardian of civil rights and a check on the other two branches.
For further reading on Justice Jackson’s dissents, please enjoy this sampling:
Edward R. Murrow once said, "No one can terrorize a whole nation, unless we are his accomplices." He added, ‘A nation of sheep will beget a government of wolves.’”
Justice Jackson will not be an accomplice. And we must not be sheep.
I blame this entire mess on Mitch McConnell, because the hypocritical old bastard stole two SCOTUS seats. I wish Obama had told the Senate, "Garland's my guy, he starts work tomorrow, and if you don't like it, do something about it." Would that have been any worse than McConnell refusing to vote on Garland's appointment? I also wish that RBG, as iconic as she was, had realized that when she had cancer, it was probably a good time to step down and allow herself to be replaced with another liberal judge. And finally, two weeks before Trump's term was over, McConnell rammed through another appointment, going completely against the reasoning he gave Obama, who still had 11 months in office. If SCOTUS is 6-3 liberal, or even 5-4 liberal, instead of the other way around, Trump would be living at Mar-A-Lardo with a leg bracelet on, or maybe he would have fled the country. He damn sure wouldn't be president. And the USA wouldn't be headed off a cliff, the laughingstock of the free world. A lot of people are going to suffer bad endings, especially in the eyes of history, over this period in our country. Because, despite all the obstacles, DEMOCRACY WILL WIN. I wouldn't be a damn Contrarian if I didn't believe that.