Justice Jackson Wants People to Focus on "What Is Happening in Our Country and in Our Government" (Updated)

Justice Jackson Sees Her Colleagues' Rulings As Threats to Democracy and the Rule of Law

From the Washington Post:

Supreme Court Justice Ketanji Brown Jackson said Thursday that the "state of our democracy" keeps her up at night, echoing a theme that has animated some of her recent public appearances and fiery dissents from recent decisions.

"I'm really very interested to get people to focus, and to invest and to pay attention to what is happening in our country and in our government," Jackson said. . . .

On Saturday, at a different event in New Orleans, Jackson called the conservative bloc's decisions "an existential threat to the rule of law." . . .

On why she writes dissents as much as she does, Jackson commented:

"It's because I feel like I might have something to offer and add, and I'm not afraid to use my voice," said Jackson, noting that she's not offended by other justices taking issue with her opinions because she has a "thick skin."

Justice Jackson's comments echoed sentiments she has expressed in some of her opinions, including her dissent in Trump v. CASA, which drew a sharp response from Justice Barrett writing on behalf of the Court.

UPDATE: C-Span has posted video of the talk, and highlights this quote:

There are sometimes when, even after the principal dissent is written, I have a slightly different perspective or a different take on something or this is an issue of particular importance to me for whatever reason. Where I will say, 'Forgive me Justice Sotomayor, but I need to write on this case.' It's because I feel like I have something to offer, and something to add and I'm not afraid to use my voice.

Comments

[John F. Carr]

A few weeks ago I listed to "On the Media" describing the decline of democracy. Around the middle of the show they revealed that they didn't really mean democracy when they said democracy. They meant other values associated with Western liberal democracies. Some of Trump's legal excesses are what he was elected to do.

[Michael D]

"They meant other values associated with Western liberal democracies. Some of Trump's legal excesses are what he was elected to do."

One paradox of majoritarianism.

[John F. Carr]

Writing "excesses" here in the context of Trump reminded me of a movie quote:

"And although I, uh, hate to judge before all the facts are in, it's beginning to look like, uh, General Ripper exceeded his authority."

(Doctor Strangelove, one of the great Cold War movies. Better than John Wayne chasing Russian skirt.)

[Randal]

So you're taking "On the Media" to task for using "democracy" in a way that includes the rule of law?

[Lee Moore]

The difficulty, as with our old friend "gender", is that democracy has a clear traditional meaning - rule by the demos, aka the citizens voting, and has developed a cloudy, hand waving, extended meaning, which encompasses a cloudy range of other stuff, often at odds with the traditional meaning, each of whose additional elements, like the rule of law, are usually cloudy too. The result is an all purpose feelz-word meaning little more than "good stuff", where each person has their own personal potpourri constituting the "good stuff."

The people to blame for this cloudery are, as usual, the lefties. But on this occasion I do not choose to highlight the lefties' usual bile and idiocy, but their psychological aversion to the notion of a trade off. Lefties are congenitally unable to accept that "something good" or "something I like" may clash, on occasion, with "something else good" or "something else I like."

Thus "democracy is good" clashes with "OMG Trump / Herr H etc won the vote !" Consequently "democracy" must be adjusted to mean "the people voting .... for leaders acceptable to me." Which kinda defeats the point of the original sense of "democracy."

It would be much better, for many reasons, but particularly for reasons of clarity of thought and discourse, if lefties were like righties. Who, on the whole have the psychological fortitude to accept that you can't always have what you want, and that you usually have to trade off one thing you like, against another thing you like.

So, if you think free speech is good and should be constitutionally protected, you accept that preventing the demos from banning speech is also good. Your general approval of democracy has to take a back seat on that one. If the people want that they are going to have to live without it, "democracy" notwithstanding.

So much more grown up than dementedly insisting that the people voting to ban various kinds of speech is not "democracy."

Democracy, liberty, public order, and the rule of law are all good things. But from time to time they point in different directions. If you use "democracy" to mean "all of the above, and more besides" you are simply deleting "democracy" in its traditional limited sense from the lexicon.

[Randal]

This is one of your stupider posts, Lee.

I understand the technical meaning of democracy. That's never the meaning that normal people / media use. It's the dumbest thing ever to try to score smarty-pants points with.

Thus "democracy is good" clashes with "OMG Trump / Herr H etc won the vote !" Consequently "democracy" must be adjusted to mean "the people voting .... for leaders acceptable to me."

What are you talking about? Democrats accepted the election results, unlike you guys in 2020. In fact you lot were predicting all kinds of liberal Jan 6es that never happened. Keep lying to yourself.

When the left notes how Trump is ruining democracy, it's not the fact our preferred candidate didn't get elected that's the problem. It's Trump's actions as president that we're highlighting, such as illegally depriving people of habeas.

Who, on the whole have the psychological fortitude to accept that you can't always have what you want

Are you serious? Have you met MAGA? Just read your paragraph again but with someone like Kari Lake in mind. Laughable.

If you use "democracy" to mean "all of the above, and more besides" you are simply deleting "democracy" in its traditional limited sense from the lexicon.

Yes. Society has deleted this ultra-pure notion of democracy from its lexicon. If you want to refer to that concept you need to say "majoritarianism" or something along those lines.

So much more grown up...

No, insisting that words can only take their most literal possible technical meaning is a childish game. I remember thinking I was smart when I figured out how to troll people that way at age six. Wouldn't it be nice if the right started acting older than six.

[Lee Moore]

The trouble is, as I mentioned, the non “technical” meaning of democracy is so vague as to be personal to each user. It is hardly more precise than “good.”

Since the technical meaning is still useful - people still care about the people voting, so much so that there’s squabbling about electoral votes v popular votes, it is unhelpful to co-opt the word for fruit salad purposes.

Obviously you beg the question with “illegally” depriving people of habeas, since “illegally” connotes contra to the laws passed by the folk elected by the people. But absent question-begging how many people, unprompted, would list habeas as a critical component of democracy ?

Though enacted in statute now, it derived from the common law which has nothing to do with people voting, and nothing to do with the laws of the many democracies which have no common law tradition.

You’re just heaping some raspberries on your fruit salad. Many people would leave them out.

[Randal]

The point is the illegality of Trump's actions, not habeas specifically.

How are you so stupid that you don't see the central contradiction in your logic? A democracy as pure as the one in your mind can't even elect representatives, because those representatives might act against the will of the people. Laws must be passed by direct vote. But there are still laws. Any executives in a pure democracy can't have any discretion lest, again, they act against the will of the people. So you'd still have the Trump problem even in a pure democracy. It's undemocratic for the President to act illegally given that the laws come from the People.

Dum dum.

Your argument appears to be that the actions of an elected president "trump" laws. That's called a dictatorship. You get one election in that society, then the dictator simply says "Thanks for electing me for life! I promise I'll keep the people in the forefront of my mind as I rule unrestrained!"

Think how many dictators use populist rhetoric and talk about "the people" constantly. Like, all of them. Most even pretend to get reelected from time to time! You're one of the dummies who would actually believe the ruse if you lived in a society like Russia for instance.

Here, maybe this'll help: https://en.wikipedia.org/wiki/Democracy

[LexAquilia]

Enforcing immigration laws is lawful.

But the Left says it's undemocratic because it's counter to their preferred policies.

Excessive and overreaching interpretations and application of the law, like the Left did with J6er's was unlawful, as deemed by SCOTUS, but the Left say that's to save democracy.

Those are examples of Lee's point in practice.

[minus the clever name]

What an idiot you are, the world divides neatly into right and not-right. IDIOT

[minus the clever name]

I am not a Lee fan but he is right and you are wrong.

You do the thing you criticize. Majoritarianism...the Constitution has about 5 different majorities and only one is a simple majority.

Words in regard to the Constution have meanings , no question of taking on a literal or other meaning. The Constitutin and Bill of Rights were preceded by 18-20 State Constitutions. Every right has several predecessors . We have the Federalist Papers We have records of State ratifying conventions, we even have Madison notes.

I don't know how much of this Lee knows but meaning derives from usage and we have truckloads of that.

IF you really want to see why you are wrong look at this brief article by a great Constitutional Lawyer

https://fedsoc-cms-public.s3.amazonaws.com/update/pdf/t7gcyMEPAec4bpK7UUunxVptVfyDd7aeQFfqM9KP.pdf

Sorry,back again, you really got me going . Look up all the definitions you want of the word "federal" and then realize that the the Founders and their forebears meant it as a covenant between the people and God
https://americanheritage.org/the-covenant-inspired-principle-of-federalism-in-the-u-s-constitution/

[Randal]

As far as I can tell, you're arguing my point not Lee's point. To wit:

meaning derives from usage and we have truckloads of that.

[minus the clever name]

No, I am saying that when the Founders wrote something down, everyone knew (incl the citizen simple folk) what it was. The dictionary picked up the meaning later if at all. Originalism is to understand the public meaning of a word.

By the way the word 'original' illustrates this and I've used it in my college class. Original in every common use now means the opposite of its entry into the world, when it meant going back to the origin. Today it means not going back to anyting but being 'original' maybe it is (mis)understood to actually mean "to originate something new' but anyway that suits my argument

[Randal]

The word "democracy" doesn't appear in the constitution, but to the extent the founders would've described the constitutional structure as a democracy, that fits my usage of the word, not Lee's hyper-technical definition.

[minus the clever name]

"Democracy" was a completely disparaged term during the Founding.

[Stephen Lathrop]

minus the clever name — I do hope that is a college class you are taking, and not one you purport to be teaching.

[minus the clever name]

Take the Declaration of Independence and your theory about the definitions of words.
WE have unalienable rights, self-evident truths, and 'pursuit of happiness'. Now you would run to whatever dictionary you like and get them all wrong.

I will post what Jefferson himself said 50 years after the Declaration , followed by a study of 'pursuit of happiness"

JEFFERSON 50 YEARS LATER
From Thomas Jefferson to Henry Lee, 8 May 1825
this was the object of the Declaration of Independance. not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject; [. . .] terms so plain and firm, as to command their assent, and to justify ourselves in the independant stand we [. . .] compelled to take. neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the american mind, and to give to that expression the proper tone and spirit called for by the occasion. all it’s authority rests then on the harmonising sentiments of the day, whether expressed, in conversns in letters, printed essays or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney Etc.

PURSUIT OF HAPPINESS
The Pursuit of Happiness in the Founding Era: An Intellectual History (Studies in Constitutional Democracy)
by Carli N. Conklin
5.0 out of 5 stars (8)

" For the founders, the pursuit of happiness was the individual right to pursue a life lived in harmony with the law of nature and a public duty to govern in accordance with that law. Both applications suggest we consider anew how the phrase, and its underlying legal philosophies, were understood in the founding era."

[Randal]

Again, Lee's the one running to the dictionary. I'm with you.

[minus the clever name]

You are closer to me but I am not saying "what did some Famous Founder believe" ( for we know the Federalist Papers actually argue a position the author opposed) or "a head count shows this was the majority opinion". No, whatever the agreed documents say and how the ratifiers etc understood them. This is the position best defended by Thomas G West

[Stephen Lathrop]

minus the clever name — It is not a historical method to read the words in present-minded context, and then yell over and over that anyone can see what they say.

[minus the clever name]

Anyone who has enough understanding of the Founding to have an opinion, this will shock you but check it out on your own:

2 of 3 Americans Wouldn’t Pass U.S. Citizenship Test
A survey found that people aged 65 and older were more likely to pass the test than those aged 45 and younger. [ and many on REASON are in the worse than 2 out 3 younger group ]

https://www.usnews.com/news/politics/articles/2018-10-12/2-of-3-americans-wouldnt-pass-us-citizenship-test,

[damikesc]

"What are you talking about? Democrats accepted the election results, unlike you guys in 2020."

Now do 2016.
2004.
2000.

Some progs are claiming Trump stole this election, mind you.

[David Nieporent]

Democrats accepted the election results in 2016, 2004, and 2000.

[JasonT20]

Some of Trump's legal excesses are what he was elected to do.

You know what I see libertarians and conservatives call it when elected officials violate law or the Constitution to do what they were "elected to do?" Tyranny of the majority. And they're right to call it that.

[minus the clever name]

But what restrains tyranny of the majority ? The human rights endowed on us by our Creator and given in the Constitution. So why blame Trump?

Biden repeatedly submitted proposals deemed unconstitutional. Several times with student tuition and both the Legislature (in Pelosi) and the Judiciary said 'violating the law"

So I can't take you seriously if you don't point to Biden and Harris on this. I saw them do it many many times

[minus the clever name]

If we go back to Plato, the misuse of the word 'democracy' was itself a sign of the decline

Abuse of Language, Abuse of Power
by Josef Pieper
Pieper offers the same claim made 2400 years ago by Plato/Socrates against the Sophists, namely that they fabricated a fictitious reality. He quotes the three statements made then re. the " value and meaning of human existence". These are: 1) To perceive ...all things as they really are ...and live accordingly", 2) that "All men are sustained....by the truth" and 3) that "Truth lives in...dialogue, discussion and conversation".

[kkoshkin]

Justice Jackson should focus on the arguments and questions presented in cases before her rather than on "what is happening in our country and in our government."

Courts are to decide cases brought by parties not to opine on "what is happening on our country and in our government."

[JoeFromtheBronx]

She is deciding cases involving the "government," and the cases involve core matters involving democracy. The stuff overlaps.

[minus the clever name]

NO, it does not. The core matter is what any Justice should be looking at. You don't bring in 'democracy' unless you realize you have no argument that stands on its own. I've watched the court for several decades, this is an amateur who can't think and can't write.
And 'democracy' was a very bad word at the time of the Founding.
So what is she referring to , conjoint Federalism ?

[JoeFromtheBronx]

She is looking at individual cases involving the government where democracy is involved in various respects.

We don't live in 1787. Suffrage has expanded since then.

Democracy is more protected in various respects. The term "democracy" means various things. It was not completely a "bad word" even then. It surely is not today.

Justices have spoken about "democracy" and the "democratic process" in quite a few opinions. Liberals and conservatives. See, e.g., Thomas in his dissent in Obergefell v. Hodges, arguing same sex marriage should be left to the "democratic process."

[minus the clever name]

Thomas knows what 'democratic process' is --- I know that !!! But do you ? Itis not Democracy
Not sure where you get that Obergefell nonsense

Writing for himself and Alito, Thomas said that the court's decision "enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss."

[Randal]

The stupid thing about that line is that they are bigots. But that shouldn't impact their religious liberties.

Religious freedom doesn't mean we coddle religious people and agree to pretend that, like, it's ok to beat your wife. It just means that we stay out of religious affairs to the extent possible.

If you want to be bigoted against gays for religious reasons, fine, but there's a limit.

If you want to be disrespectful to your wife for religious purposes, fine, but there's a limit.

[minus the clever name]

LOGIC error and data error.

I know tons of folks who, becaue they knew homosexual acts are perverted, who know it is wrong to take the life of a baby they became Catholics.

So that's 2 fallacies
1) IF you are an X and you believe Y , you must believe Y because you are an X....totally false even in a syllogism

2) You assume because some people truly are evil and are religious that from that you can deduce that non-religious must be less evil. Silly, really.

I just saw a study the other day by someone examining your fallacy

"Indeed," writes Meic Pearse, "there is only one thing that bears a heavier responsibility than religion as a principal cause of war. And that is, of course, irreligion."

You would say 'impossible' BUT THAT DOES NOT FOLLOW

[Randal]

I made neither of the fallacies you mention. You read both of them into what I said, but I said no such thing.

[JoeFromtheBronx]

It is not Democracy

Thus, the use of two different terms + the word "and" to separate them. They are rather related, though.

Not sure where you get that Obergefell nonsense

From his dissent. It's an example of usage of the term. Thus, the use of quotation marks.

"Democracy" is also referenced in other opinions, including NYT v. Sullivan, a foundational 1A case.

[Social Justice is neither]

And the Venn diagram of the overlap of those things with Jackson's diatribes is 2 circles without intersection.

[minus the clever name]

NOt sure what you are saying but keep in mind that Venn diagrams are not logical explanations of causes but of effects. I can agree that Prohibition is a good thing because I have a still in the back and it will increase sales.

[Rossami]

In fairness, she retains her 1A rights just like any other politician. And I grant her non-judicial opinions precisely the same weight I give to any other politician's bloviating - that is, approximately zero.

[minus the clever name]

So who decides what is judicial or non-judicial ? YOu ?
Are we talking about the Two Brain theory . Justices have a constitutional brain and an outside-the-courtroom brain ?

Sorry, it's a poorly functioning one brain that we are talking about.Kamala-level

[Sarcastr0]

Judges paying attention to the practical upshot of their judgements is not just legitimate, it's necessary for the long term legitimacy of the judiciary as an institution.

[Lee Moore]

“paying attention to” is doing a lot of traditional sarcastroian work here - ie muddying waters, baileying mottes etc.

If “paying attention” includes incorporating into the formulation of your legal judgement then obviously you are a usurper of the legislative branch. And consequently an active underminer of the legitimacy of the judiciary.

Your thoughts as a judge as to the “practical upshots” of your judgements have no more relevance to the legal correctness of your judgements than have the musings of Homer Simpson. Qua judge they’re irrelevant.

If you choose to comment on these practical upshots as you see them, without attempting to incorporate them in your judgement, fine. Though my advice would generally be to leave such musings to speeches and articles and not to clog up your opinions with them, lest folk start to believe that you think your musings about effects influence your legal decisions.

But if you rule one way, and muse that this is a silly answer but one compelled by law, you have a reasonable excuse. If you rule contra to your musings you can’t be accused of letting your musings influence your decisions.

[Sarcastr0]

No - I get to take the easy thesis because kkoshkin took the extreme one. And so do you.

You want judges not to take practicality into account? That's because you're arguing a side, not reality. In the real world, consequences matter even to Justices. Or philosophers.
Or people on the Internet who aren't willfully blind because they love Trump too much and therefore think decisions that come before the Supreme Court are completely directive and obvious.

I just read Smith again, and the practicality of the decision is it's main argument!
Trump v. US isn't even about what's happening, the opinion spends all it's time speculating about what might happen.

These are not easy questions. Stop being facile.

[Lee Moore]

In the real world, consequences matter even to Justices. Or philosophers.

Consequences matter to everybody. But the task of adjusting policy to take account of such bad consequences of the law, correctly found, as may be thrown up, does not lie with the judiciary. Our system is set up under the separation of powers, which requires that each branch of government stay in its lane.

"It is emphatically the province and duty of the judicial department to say what the law is"

It is emphatically not the province and duty of the judicial department to substitute something other than what the law is, to avert adverse consequences. The consequences, good or bad, are a matter for the legislative and executive branches to concern themselves with.

All men are fallible, including judges. We must expect that from time to time they will fail to keep their views on practical upshots out of their judgements. But the consequences of encouraging and applauding them when they do so are far more dire. When the umpires care about who wins and act accordingly, there are no longer any umpires, only players.

[MollyGodiva]

She does that as well. It is not hard because the majority options are so lacking in logic or basis in law.

[minus the clever name]

Molly and Sarc make the same mistake so of course they can't see it. You can go by a standard or you can go by "practical upshot' but logically that results in smart folk eventually noticing that your standard IS PRACTICAL UPSHOT.

SO, why does Molly even bring up logic or basis in law. She is agreeing with someone who plainly rejects that.

Logic can be enlightening, can't it

[Lee Moore]

Spot on.

[Randal]

Many if not most legal standards are based on practical upshot. Congratulations for figuring that out.

[minus the clever name]

NO, they are not.

There were also more 6 to 3 decisions last term as a fraction of the total decisions of the Court than in any previous term in the Court’s history.

https://empiricalscotus.com/wp-content/uploads/2023/06/ideological_splits-1.png?w=840

[Randal]

YES they are. Major Questions, Intermediate Scrutiny, Pickering, Tinker, just to scratch the surface.

The prevalence of 6-3 decisions proves MY point, little dorkbutt. These practical-upshot standards are very susceptible to results-oriented judging.

[minus the clever name]

Then you logically destroy your own argument. With so many divided opinions, what are you , something over the Supreme Court?

They do not divide the same way all the time so you must be claiming some kind of special gift (sorta like dowsing, I suppose)

Look at this chart and tell me how you decide
https://empiricalscotus.com/wp-content/uploads/2024/04/scoring.png?w=1024

[Riva]

And I don't know what she's complaining about. People are starting to focus on what is happening in our country and in our government. They're starting to recognize the radical judicial abuses of power as well as the gross incompetence of the S.Ct.'s embarrassing DEI appointment. Even some of her fellow democrats on the Court are starting to notice. How could they not?

[not guilty]

Thurgood Marshall, Sandra Day O'Connor, Sonia Sotomayor, Clarence Toady and Katanji Brown Jackson were each affirmative action nominees. George H. W. Bush's 1991 pronouncement:

"The fact that he is black and a minority has nothing to do with this sense that he is the best qualified at this time. I kept my word to the American people and to the Senate by picking the best man for the job on the merits."

https://www.washingtonpost.com/archive/politics/1991/07/02/bush-picks-thomas-for-supreme-court/943b9fda-e079-405e-974e-14c2d0cd999b/ remains the most egregious lie told by any President during my lifetime. Even more outrageous than "I am not a crook", "We did not trade arms for hostages with Iran" and "I did not have sexual relations with that woman, Miss Lewinsky."

[minus the clever name]

THen maybe you were sleeping when Biden (a very academically poor lawyer himself , bottom 10 at Syracuse) said Ketanji was one of the great legal minds of her generation.

Like Snoop Doggie Dog saying Bach had a couple good tunes

[Riva]

Here’s the difference between you and me NG. My opposition to Jackson is based on her gross incompetence. As Prof. Jacobson has noted, even “Sotomayor treated KBJ like she was explaining the law to a 5th Grader.” You apparently dislike Thomas for political reasons. Does his race also factor in?

[minus the clever name]

Ok, but Biden said she is one of the greatest legal minds of her generation, the original bad opining by a man notoriously poor in legal acumen (Bottom 10 of his law class, and we're talking Syracuse)

[bernard11]

but Biden said she is one of the greatest legal minds of her generation,

This sort of hyperbole is common when Presidents describe their SCOTUS nominees. Here's Trump on Kavanaugh:

He is a brilliant jurist, ......universally regarded as one of the finest and sharpest legal minds of our time.

Pretty standard stuff.

[minus the clever name]

Okay , when the people I know say what you are so cagey in saying , it reduces to "Biden was lying"
Really,Bernard , for you to argue she brilliant but not one of the greatest legal minds of her generation , well, you just befoul your reputation.

[Longtobefree]

No, courts are there to keep those icky conservatives from getting the idea that they actually live in a free country. As soon as the courts get fully unified, they can eliminate the USA and force the (remaining) population into the new world order.

[JonFrum]

Raised above her station. Again and again. This is the institutioinal adoption of the Peter Principle to the nth degree.

[ReaderY]

What exactly is her “station”? Planting cotton on the plantation? Cooking? Wet-nursing Massa’s children? Warming Massa’s bed?

Even for those who strongly disagree with Justice Jackson, an honest and unbigoted view of her merits shows her a smart, talented, and hard-working judge. Moreover, comments like these go a great way to explaining where whe is coming from and why she has reason to be concerned.

[Roger S]

She was only appointed because she is a Black woman. Her Scotus opinions have been terrible.

[wvattorney13]

I think that is grossly out of line. I happen to think that Justice Jackson is very much an intellectual lightweight. She makes no bones about not following the law but following her own feelings.

I say that without regard to her race and I don't believe the previous poster referenced her race or implied that it had anything at all to do with it.

If anyone is to blame for the belief that Jackson is an unqualified DEI hire, it is Biden who made it a point that he would exclude the 65% of candidates who were not female and the 95% of candidates who were not black. By definition he excluded a tremendous amount of talent. When you do that, you can't complain that people think you didn't choose the best.

[Randal]

Her opinions -- and especially her oral arguments -- are some of the best on the court. I don't mean because I agree, I mean because they are objectively smart and well-reasoned.

... an intellectual lightweight. [He] makes no bones about not following the law but following [his] own feelings.

You're obviously talking about Alito.

[mulched]

Why would Justice Jackson be making oral arguments? She's a justice, not a lawyer for either side.

[Randal]

Seriously? Ok her participation at oral arguments if that helps.

[mulched]

Makes sense. She does contribute a lot of words during oral arguments. Value per word not particularly high, but she does win on quantity.

[Incunabulum]

If they were so smart and well reasoned then why are other legal professionals - including *her own peers* - pointing out the myriad mistakes on legal reasoning she makes?

Also, are you a bit? Justices don't make oral arguments.

[Randal]

People who disagree often frame their disagreements as "pointing out mistakes." I'm not sure what you think that proves.

[TwelveInchPianist]

"I don't mean because I agree, I mean because they are objectively smart and well-reasoned."

You're confused. It's my opinions that are objectively correct. Yours are objectively wrong, except in the rare case where we agree.

[Randal]

No, you're just pretty stupid is all. Take Thomas for instance. I disagree with him entirely, but I think his writing is relatively smart and well-reasoned, if occasionally pretty obviously outcome-oriented. Although rarely clear, Gorsuch can be logical, except, again, when he has an outcome in mind. And although I agree with Sotomayor's opinions, I find her approach to (questions during, since this is apparently confusing to people) oral arguments to be infuriating and her rhetoric to be almost as baldly political as Alito's.

So no, my appreciation for Jackson's intellect and writing is distinct from my take on the merits. I'm not that shallow.

[not guilty]

The current Justice Jackson may be mimicking the pattern set by Justice Clarence Toady, who wrote a lot of solo dissenting opinions and statements regarding denials of certiorari that he disagreed with, in order to lay the foundation to quote therefrom in future opinions.

I for one am glad to see a member of SCOTUS with prior criminal defense experience -- the first one since Justice Thurgood Marshall.

[Phanatic]

Her opinions have revealed that she sometimes doesn't even understand the matter that is actually before the court!

She actually took this study at face value in an opinion. That is not a smart person. Or if it is, it's a dishonest person.

https://thehill.com/opinion/healthcare/5231512-fake-science-media-black-infant/

[Incunabulum]

No, an unbigoted views does not show that. Her own words tell us she is not interested in *judging* but in exercising political power.

Also, why do you guys have this slavery fetish?

[minus the clever name]

So where you sleeping in the forest when the same was said of Justice Thomas 🙂

[Snorkle]

There it is. I knew the racists wouldn't sit this one out.

[Stupid Government Tricks]

Got a nose for it, do you?

[Riva]

It's not racist to point out that Jackson is incompetent and unfit to sit on the Court. It's what we call the truth.

[David Nieporent]

Jackson went to Harvard and Harvard Law School. Riva is a bot programmed solely from the cesspools of social media.

[Sarcastr0]

Just say uppity, you racist fuck.

[Riva]

I can almost picture the spit flying as you pointlessly scream that aloud. I’m sure your neighbors are used to the deranged outbursts by now.

[santamonica811]

I am very interested in how people in 2055 will treat the words of Justice Jackson, and in how people of 2125 will treat the words of Justice Jackson.

I have very little interest in how the people of 2025 treat her words, as our feedback remind me too much of the murmurs of the crowd, "Shut up, kid. Stop telling our beloved emperor that he's not wearing any clothing."

I'd like to see if our analysis is the same, once some time has passed and our fever has broken.

[loki13]

Heck. Just read Justice Jackson (um, the other one) in his concurrence in Youngstown.

No, not the test people sometimes know vaguely. Not the bit snipped for the casebooks. Read his whole concurrence.

Now, after you do that*, the words of the current Justice have a decidedly different tone.

*Yeah, like the usuals will actually read an opinion. Since when should "actual knowledge" or "looking at source materials instead of what someone tells you is in those source materials" stop a person from bloviating.

[Rossami]

Well, it's more likely that people will read it if we make it easy - so here's a link. Justice Jackson's concurrence starts on page 56 of the pdf (page number 634 of the original printing) and runs for 19 pages.

[Rossami]

Incidentally, I do not think that test puts the current Justice Jackson's dissents in "a decidedly different tone". Much as I dislike many of Trump's policies, there is a decent argument that they are entirely in compliance with the older Jackson's grouping one - acts with either explicit or implicit authorization by Congress.

Congress has spent a century of so over-delegating away their authority. And they love weasel-worded statutes that can be twisted to whatever purpose fits the day. Trump is merely the most recent president to take advantage of Congress' laziness.

[loki13]

Incidentally, I made a point to say to read think about the whole Jackson concurrence.

Not just the test, or the little bit cribbed for casebooks. Justice Jackson was expressing something I think is quite valid today- and he was doing so at a time when Congress was much more powerful, functional, and jealous of its proper role in the Constitutional structure.

It's almost like these problems are easy to identify- and have been, repeatedly- but instead of acknowledging them, some people would prefer to shrug and say, "Whaddya gonna do? Amirite?"

There are, quite literally, so many things going on right now you can't keep track of them. Heck, think of the TikTok ban. Remember that? Whether you agree with it or not, it's an actual law. And the AG has told individual companies that they don't need to obey the law- civil laws- because the President said not to. That's an ability that was stripped away from the British Crown well before we split.

So it goes.

[JoeFromtheBronx]

The author of a forthcoming book on his concurrence has a new Slate piece. One bit he quotes:

“I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.”

(There is a third Justice Jackson, but few care about him.)
https://slate.com/news-and-politics/2025/07/greatest-supreme-court-justice-essay-no-kings.html

[David Nieporent]

And the AG has told individual companies that they don't need to obey the law- civil laws- because the President said not to.

That — telling them, "You can go ahead and break the law because we won't prosecute" — would be less objectionable than what actually happened; the AG actually told the companies that it wasn't illegal for them to violate the law because the president told them not to.

[MollyGodiva]

That dissent is as relevant now as it was then, possibly more so. He rips apart the unified executive theory.

[Absaroka]

Thanks, loki and Rossami. Well worth the read.

I especially liked this bon mot: "We may also suspect that they suspected that emergency powers would tend to kindle emergencies."

That's some golden wisdom for the ages.

[minus the clever name]

Biden had to say she was a great legal mind because it appeared the opposite. No one introduces a super-model as pretty though a real barker might be said to have 'unique' looks. Guys know exactly what I mean [ wink, wink ]

[minus the clever name]

But you don't have the fever, right. Everybody else does.
Why would people think she is substandard now but not later?
Biden called her one of the greatest legal minds of her generation. NO ONE will ever say that again.

[David Nieporent]

Biden called her one of the greatest legal minds of her generation. NO ONE will ever say that again.

You can't even write in standard English, and your logic skills are less than that of your average middle school student, and you have the nerve to question her mind?

[minus the clever name]

Okay , two more logic fails from you

1) The only question would be, how logical is your average middle school student. Well probably "average" ????

2) The implication of your statement, unbeknownst to you, is the illogical conclusion that you are superior to both me and her. Maybe but there is no defensible basis for assuming that to be the case.

This is why I always look at the logic angles. You can say all you want but even if the data is right you can be using it illogically , which you often do

PS How do you avoid a fallacy by going along with Biden's statemetn. Is he a great legal mind too. No one on here will agree with you there. You are like Bill Nye saying Newton said some things that are correct.

[wvattorney13]

When you join the left, are you taught that things are not merely threats, but existential threats? Because everyone left of center seems to have gotten together and agreed on that adjective.

[Randal]

Yes, actually, now that you mention it.

[Frank Drackman]

You know what keeps me up at night?
My Prostrate,
and I keep that (redacted) flushed, Nome, Sane? It’s like if you changed your cars oil every day.
Bad example, more like running the faucet for a few seconds before you drink (ever got a spider in your cup? They love faucets)
Oh, you might want to wash my cup before using it, fair warning (those crystals aren’t sugar)
I figure if I can still rub one out every day or so I’m good, gotta get rid of those toxins, RFK Jr said so

Frank

[Randal]

Is the takeaway here that Penis of Ugly Man, concerned about the commie plot against his precious bodily fluids, drinks a cup coffee with cream and sugar cum and crack every morning?

[IANNAL]

If she would like to step down from the Court and run for Congress in my District / State, I promise to vote for her.

[minus the clever name]

Is that you , Kamala?

Here, Oprah, here's some money so you'll say "dear poor people, please send in your food cash so I can put a billboard up in Vegas, your friend ...."

[minus the clever name]

Anybody getting the funny connection here ???? Biden said she was one of the great legal minds of her generation.

Biden had a "C" average and was ranked 506th out of 688 in his graduating class. He went on to be in the bottom 10 of his law class.
Are you seeing the connection>

[Longtobefree]

Biden read what was on the prompter.

[thesafesurfer]

Remember that all criticisms of Justice Jackson are racist and misogynistic.

[Randal]

Just like all criticisms of Israel are antisemitic! And all criticisms of Trump are TDS! I get it now.

[Longtobefree]

Also remember that the race card is no longer a winning card, it is a deuce.

[Stephen Lathrop]

For Justice Jackson, it is far too soon even to guess what the verdict of history will be on her Court performance. The same cannot be said of her colleagues.

Jacson's colleagues have records which might later be reformed, but as a group, on the basis of what they have shown so far, they range across the entire gamut from terrible to mediocre. Even Kagan's performance has lately been in sharp decline. And there are entire classes of cases, especially about environmental issues, where Kagan has always been obtuse. She is habitually as inappropriately partisan as most of the other members of the Court, though not as corrupt about it as some.

Jackson seems to have at least a good chance to be noted in history as the best Justice on the otherwise disastrous Roberts Court. The commentary focus in this thread illustrates why. Jackson is insisting the Court take judicial notice of a series of cases which share the same bizarre context—an American Executive committed to emphasize lawless defiance of due process, separation of powers, and personal rights.

It is in fact the sworn obligation of the Justices to notice stuff like that, and for now Jackson is the only one fulfilling that obligation. That will look good in historical hindsight, and especially so in contrast to the derelictions of Jackson's colleagues.

[minus the clever name]

YEs , that was the best food I tasted the night I threw up and was rushed to ER....Naah, no sane human would call someone the best Justice on the otherwise disastrous Roberts Court !!!!????? ;(

[minus the clever name]

It is rather clear what her legacy is. Biden ( one of America's most substandard lawyers, Bottom 10 at Syracuse) called her one of the greatest legal minds of her generation. That will stick with her forever, that one of American history's least qualified lawyers thought her among the greatest.

[ReaderY]

Hate to burst your bubble. But “Minus” is not nearly as clever a name as you seem to think it is.

[MollyGodiva]

Jackson's dissents will go on to become some of the most important dissents in US history. She is the only one loudly and clearly calling out our descent into fascism and dictatorship.

[Roger S]

Let us know when she figures out what a woman is.

[MollyGodiva]

Case in point. Instead of any reasonable reply, Roger S just spouted bigotry.

[tylertusta]

What was bigoted about Roger's reply?

[Randal]

Essentially the same thing that's bigoted about yours.

[damikesc]

So, nothing at all?

[wvattorney13]

He dared criticize a person of color for any reason. That is simply not allowed by the left. Except for Clarence Thomas. Fire away at him.

[JoeFromtheBronx]

Now, be fair. They also think it is acceptable to criticize other non-white conservatives.

More seriously, it's a troll. Her overall reply recognized the complexity of the question, including how pre-Obergefell, states defined "sex" in different ways. Who you could marry turned on different criteria depending on the state you lived in. If you had certain types of sex transition surgery, you might be able to marry, but then maybe not. It might turn on your legal sex at birth.

The biological and legal meaning of "sex" is complicated and not as obvious as the question supposes. OTOH, the trolling underlines the value of the question for trolling purposes.

https://www.politifact.com/article/2024/mar/22/what-is-sex-what-is-gender-how-these-terms-changed/

[Social Justice is neither]

No, it's made complicated by malevolent Leftists. In reality it's still simple if you're sane, sorry.

[Randal]

So I take it you consider an "effeminate man" to be an impossibility. I admit, it is simple!

[minus the clever name]

ROger is dead right though. Maybe a bigot, but dead right.

[minus the clever name]

Molly almost never replies with anything balanced. Some of the most important dissents in US history !!!

Never will happen. For 3 reasons

1) she can't write.
2) she is by far the most talkative of the Justices at oral hearings and constantly says 'I don't understand" --- you say it's a tic, it aint no tic , she doesn't understand
3) She retreats into attacks on the legal soundness of her colleagues way too often. 3 cases
In 2 cases in mid-June " Jackson accused her colleagues of distorting the law to benefit major American businesses and in so doing "erode the public trust." "
Then right around that time in the ADA case "Saying the majority has a "unfortunate misunderstanding of the judicial role," Jackson said her colleagues' "refusal" to consider Congress' intent behind the ADA "turns the interpretative task into a potent weapon for advancing judicial policy preferences.""

This will pit her reputation against most of the Court. You say that will go well for her but I have rarely seen that happen

[Randal]

Ah, you haven't figured out yet that what makes smart people smart, above all else, is that they know what they understand and what they don't understand. Yet.

[minus the clever name]

That of course is false in the extreme. Einstein was smart before he learned Physics, but you average college Physics major knew mort than him and understood more until Einstein got his training

And those of us who know Einstein's history have a great anedote against you. Einstein very vocally attacked Michael Polanyi's gas adsorption theory saying that he E. knew and understood that Polanyi had to be wrong.

"During a crucial meeting at the Kaiser Wilhelm Institute for Physical Chemistry in Berlin, Germany, Michael Polanyi presented his adsorption theory. Present at this meeting were key figures in the scientific community, including Albert Einstein and Fritz Haber.
After hearing Polanyi's detailed explanation, Einstein and Haber expressed strong criticism, asserting that Polanyi's theory demonstrated a "total disregard for the scientifically established structure of the matter". "

PLEASE LET"S PUBLICLY DEBATE THIS

[Randal]

Learning physics isn't what made Einstein smart. Did you think about that at all before you published it?

What made him smart was that after he learned physics he said hm. I DON'T UNDERSTAND how light (and later gravity) do the things they do. So he got to work on trying to understand it better, and figured out a bunch of new physics.

If you think you already understand everything, you can never learn, let alone invent.

I'm not sure what the Polanyi story is meant to imply. That Einstein actually wasn't smart after all? Even smart people can be wrong and often are.

[minus the clever name]

Let's examine that thought. I can completely disagree with you on every SCOTUS decision and still agree that we descending into blah, blah, blah. That leaves the actual decisions untouched. And that is your problem..you want someone to pound the podium (Biden used to do that at the most inappropriate times) and decry the state of the country no matter what opinion they deliver. These are 2 separate things. Judge Taney gave us Dred Scott but

Taney did free his own slaves in 1818, before his Supreme Court tenure. He also defended a preacher charged with inciting a slave insurrection, arguing against slavery as a "blot on our national character" in 1819.

So what you think and what you decide as a judge are like universes apart.

[Longtobefree]

If only she would use her brain before she uses her voice - - - - - - - -

[Tired Old Texan]

"It's because I feel like I might have something to offer and add, and I'm not afraid to use my voice,"

Justice Jackson, run for Congress, get a blog, anything that floats your boat. Your feelings are not what the Supreme Court is for.

[JoeFromtheBronx]

I'm unclear about the problem of a federal judge writing opinions on the legal questions that come in front of them.

Justices regularly write separate concurring and dissenting opinions that have a more personal character. Many people around here, for example, support Justice Thomas doing that.

[Armchair]

It's a question of the legal questions, as opposed to the personal political opinions of the Justice.

If it's about the legal opinion before her...sure. If it's about her personal political beliefs, or why the Kansas City Chiefs are the best football team or why Tyson Chicken Nuggets are superior to all other brands...

Make a personal blog about it. Don't use a SCOTUS opinion to promote the KC Chiefs.

[JoeFromtheBronx]

She is providing her legal opinions.

[Social Justice is neither]

No, she's providing her feelings about what should be.

[William of Brooklyn]

Re the meaning of "democracy," it's worth noting that British subjects had rights before they had votes, and Athens had votes before they had rights. Trying to find some way past pure power, and the pure rule of the stronger in an endless cycle of abuse and retaliation is what the jury was for in Oresteia. That notion is the kernel of the Rule of Law. What we expect is a *balance* between pure majoritarianism and the abuses inherent in legal positivism on the one hand, and some aristocratic top-down delivery of "justice" and therefore the way things *must* be ordered on the other. "Democracy" is as abused a term as "left," "right," "communist" and "fascist." Rule by the majority, constrained by certain individual rights and limited powers of government, is what we Americans all mean. All of us. But there's a lot of play in the joints. And it is as unhelpful and inaccurate when someone claims "this isn't a democracy" when there are unjust outcomes to some legal arguments or public policies, as it is when another voice claims "we have the votes; we can do whatever we want." Both are false.

With respect to the Judiciary, who swear an oath to uphold the Constitution, sometimes (before the 13th) that means upholding slavery, or (after the 18th and before the 21st) upholding prohibition. The job of jurists is emphatically NOT to do justice in cases solely concerning interpretations of law, nor to invent law in cases involving equity.

[thesafesurfer]

"Abuses inherent in legal positivism" is an obtuse way to express the idea of judicial tyranny. Why don't you provide your definitions of "Democracy," "Communism," and "Fascism." They exist you know.

Democracy is a political system where sovereign power rests with the people not with the courts not with institutions not with monarchs and not with oligarchies.

Communism is a political system where the government eliminates private property and owns and controls the means of production.

Fascism is a government by dictator where virtually no individual freedom exists, dissent is not allowed, and the owners of the means of production cooperate with the government to control the economy and even form state run enterprises.

It counts if you define what you are talking about so you can mock individuals who lie when using the terms.

[William of Brooklyn]

I don't seek to "mock" anyone. But here are some authoritative definitions:

Fascism: https://sjsu.edu/faculty/wooda/2B-HUM/Readings/The-Doctrine-of-Fascism.pdf

“the theory of Communists may be summed up in the single sentence: Abolition of private property.”
― Karl Marx, The Communist Manifesto
And of course what Mussolini was far more candid and fulsome about than Marx was the necessity of absolute power, concentrated to a pinpoint, in order to impose and enforce this new order. World without end. Pithily summarized by Mao, "political power comes from the barrel of a gun."

Quite the contrast with "...That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

[minus the clever name]

I remember when Biden introduced Ketanji, it was like when someone says 'You are goin ta love this joke, it's so funny , wait til you hear it" So a poorly-spoken, lazy, sub-smart guy brings out this Black woman and says "She is one of the greatest legal minds of her generation" you know,like 'See this elephant, this elephant is fat ,real fat "
Anybody else have that response ?

[bernard11]

Why do you keep repeating that foolish complaint.

I pointed out above that Trump said much the same about Kavanaugh when announcing his nomination.

And Bush Sr. laughably called Clarence Thomas "the best person" for the nomination.

So stop. I mean, I know this is summer vacation and you're bored, but don't worry. The tenth grade isn't too hard.

[David Nieporent]

For the record, the quote from our illiterate pretend academic is fabricated. Although he puts those words in quotation marks, over and over and over again, they're not Biden's words.

[William of Brooklyn]

Biden's actual words were "she is one of our nation’s brightest legal minds..."