Justice Ketanji Brown Jackson draws attention with strong dissents and carefully chosen words
In September, Justice Ketanji Brown Jackson stole the spotlight from the coming U.S. Supreme Court term with her whirlwind schedule of appearances to promote her memoir, Lovely One.
There were serious TV and print interviews about the book, which details her upbringing as the daughter of parents who faced segregation and her auspicious path to the legal profession and the nation’s highest court. There were also somewhat lighter interviews with Elle magazine, the ladies of The View, and The Late Show with Stephen Colbert.
Colbert, for his part, showed Jackson a page from her 1988 high school yearbook in which Jackson professed her desire “to go into law and eventually have a judicial appointment.” He suggested that her phrasing, as opposed to just saying “be a judge,” was “taking it seriously at a young age.”
To laughter from the studio audience, Jackson said, “I was already choosing my words carefully.”
By the end of the 2024-25 court term, Jackson’s carefully chosen words from her day job, mostly in dissent, are what had people talking.
“What struck me the most was Justice Jackson kind of popping out of her shell,” U.S. Sen. Sheldon Whitehouse, the Rhode Island Democrat, Judiciary Committee member and frequent critic of the conservative-dominated court told Slate’s Dahlia Lithwick on her Amicus podcast this week.
Jackson has “pulled back the curtain” and started to call out the conservative majority’s “patterns and predispositions,” Whitehouse said.
Jessica Clarke, a professor at the University of Southern California Gould School of Law, says that with her dissents, Jackson “is trying to explain to an audience beyond her colleagues what’s happening right now, and she’s asking that we all pay attention.”
Clarke particularly liked a line in Jackson’s dissent in an April decision in Department of Education v. California, in which the majority granted President Donald Trump’s administration’s emergency-docket request to cancel more than 100 teacher-preparation grants to higher education institutions, school districts and nonprofits.
Jackson criticized the majority for focusing on the “ancillary threshold and remedial questions” raised by the administration.
“Children, pets, and magicians might find pleasure in the clever use of such shiny-object tactics,” Jackson wrote. “But a court of law should not be so easily distracted.”
Clarke says the “shiny objects” line “nicely sums up a theme of the term: that the court has refused to acknowledge the real stakes of its decisions. It has instead diverted attention by focusing on procedure, engaging in circular logic, contorting the texts of statutes … and inventing histories and traditions.”
Strong language in dissent and a colleague’s rebuke
Jackson, 54 and in her third term on the court, wrote just five majority opinions, but at least 20 concurring and dissenting opinions, including in matters from the court’s emergency docket that were still being decided as of this week. Several of her dissents were in response to rulings favoring the Trump administration.
On May 30, when the court in an emergency order allowed the Trump administration to revoke a form of administrative parole to some 500,000 noncitizens from Cuba, Haiti, Nicaragua and Venezuela, Jackson wrote in dissent that the majority had “plainly botched” the application of the proper factors for granting such emergency relief.
The court “undervalues the devastating consequences of allowing the government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending,” Jackson wrote in Noem v. Doe.
In June, the court ruled 7-2 that fuel producers had standing to sue the Environmental Protection Agency over its approval of California’s regulations that require automakers to manufacture more electric vehicles and fewer gasoline-powered ones with a goal of decreasing emissions from liquid fuels.
In a dissent in Diamond Alternative Energy LLC v. EPA, Jackson said, “This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens.”
The Jackson dissent that got the most attention came June 27, the last formal day of the term. In Trump v. CASA Inc., the court ruled universal injunctions issued by federal district judges blocking a federal policy against nonparties nationwide likely exceeded the equitable authority granted by Congress to the courts.
The court partially stayed the injunctions that had blocked Trump’s executive order aiming to end birthright citizenship for children born in the United States to immigrant parents who had entered or were living in the country illegally.
Jackson said the majority was endangering the rule of law and practically endorsing “the creation of a zone of lawlessness within which the executive has the prerogative to take or leave the law as it wishes.”
She went on to say the majority’s ruling was “profoundly dangerous, since it gives the executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the founders crafted our Constitution to eradicate.”
Jackson’s solo dissent, which was separate from the principal dissent by Justice Sonia Sotomayor and joined by Justice Elena Kagan as well as Jackson, prompted an unusual rebuke from Justice Amy Coney Barrett in the majority opinion.
Jackson “chooses a startling line of attack” that “offers a vision the judicial role that would make even the most ardent defender of judicial supremacy blush,” Barrett wrote.
“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,” Barrett said. “We observe only this: Justice Jackson decries an imperial executive while embracing an imperial judiciary.”
The tiff sparked widespread commentary. It was an “unprecedented swipe” by Barrett, New York University law professor Melissa Murray said on the Strict Scrutiny podcast.
At a term review at the University of California at Irvine law school last week, Erwin Chemerinsky, dean of Berkeley Law and an ABA Journal contributor, said Barrett’s response to Jackson “crossed a line.”
“I think that there’s been an increase in sarcasm and put-downs among the justices, and it’s lamentable whether it’s the conservatives or liberals doing it, but I think that Justice Barrett treating Justice Jackson that way was regrettable,” he said.
Some conservatives took delight in Barrett’s rebuke. But others suggested the real issue was overheated rhetoric by Jackson in her dissents and her aggressive questioning during oral arguments.
Josh Blackman, a professor at South Texas College of Law Houston who sometimes attends arguments, says he has observed liberal Justice Kagan appearing “kind of annoyed” at some of Jackson’s questions.
“It’s like, ‘What are you doing?’” the conservative Blackman suggested Kagan was thinking. “‘We need to recruit conservatives to join us. Why are you going on these sort of tangents?’”
“I think we’re seeing a schism” among the liberal justices, with Sotomayor and Kagan sometimes not joining Jackson’s more strident dissents, Blackman said at a Heritage Foundation term review this month.
Clarke, the USC law professor, says she doesn’t “have a lot of patience for these objections to Justice Jackson in terms of her tone.”
“She is raising the alarm about the threat that the Trump administration’s lawless actions pose to our democracy and calling attention to the fact that the Supreme Court has hobbled the judicial branch from serving as a check and balance,” Clarke says. “In my view, this is an important message for the public.”
No glass jaw for Jackson as she absorbs jabs
Now that the term is over (except for the seemingly never-finished emergency docket), Jackson has resumed her book tour and has had some interesting things to say.
On July 5, Jackson told ABC News correspondent Linsey Davis at the Essence Festival of Culture in New Orleans that she was heartened that the public was focusing on the work of the court because “as a democracy, the people are supposed to be the rulers.”
Davis asked about the recent revelation, in an interview Jackson gave to the Associated Press this winter, that she had taken up boxing for exercise.
“I have!” Jackson replied with enthusiasm. “I was looking for a physical outlet … and one of my [security] detail members is a boxer, and she said, ‘You should really try this. And I know someone who can train you.’ And he’s been great. I’ve really enjoyed it.”
At an appearance before the Indianapolis Bar Association on July 10, Jackson showed she remains keen to spar verbally as well as physically.
U.S. District Judge Jane E. Magnus-Stinson asked Jackson, in a barely oblique reference to Barrett’s jabs in the CASA opinion, whether another justice’s words aimed at her ever hurt her feelings.
“I have a very thick skin,” Jackson quickly replied. “My parents gave to me a sense of my own ability to write and to speak out and to say what I have to say and to not be really offended by other people saying what they have to say. So I actually don’t get my feelings hurt. What I do is I try to respond as effectively as I can in my writings.”
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