Justice Ketanji Brown Jackson – Off the Rails

Supreme Court Justice Ketanji Brown Jackson, who could not define a “woman” in confirmation hearings, is now embarrassing her colleagues on the right and left.

First, in Trump v. Casa, a case testing whether a federal district court judge could issue a nationwide injunction, the US Supreme Court ruled (6-3) that district courts lack the authority to issue “universal” or nationwide injunctions.

The decision was not a surprise, long predicted, years in coming, since district courts are created by statute, have limited jurisdiction – even for injunctions. They are not in the Constitution. The Supreme Court just reminded them of that.

The problem, of course, was creeping judicial activism, with district courts asserting rights they never had  – which belong either to the Supreme Court or the Chief Executive. They just got slapped back, rather decisively.

That did not prevent the High Court’s junior justice, with limited experience as an appellate judge, from inventing reasons for nationwide jurisdiction or activism.

In a wandering, legally unanchored dissent, Jackson asserted that lower court judges should be able to reverse a president. The dissent was flaccid, filled with non-legal gibberish. One almost hears the other justices groaning.

Justice Amy Coney Barrett, writing for the majority, did not dignify it with review; instead, she dismissed it. Like disposing of a student who failed to do the homework, Barrett wrote that the dissent was not just “extreme,” but without non-legal.

Beginning kindly, Barrett said Jackson’s “position is difficult to pin down,” but “goes far beyond the mainstream defense of universal injunctions.” Sadly, it is “more extreme still…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,” trying to make activism king. Boom-tick, done.

Then, days later, came the 8-1 decision reversing a district court – and the 9th Circuit – which imagined they could stop a president’s Article II directive to 21 agencies to plan for downsizing. Again, Jackson was in the wandering zone, off the rails.

This time, it was fellow Democrat appointee Justice Sonia Sotomayor who lectured her fellow justice for getting the law wrong. When Jackson railed, calling Trump a “wrecking ball,” Sotomayor scolded her for simply ranting.

In a one-paragraph concurrence, Sotomayor wrote: “The relevant Executive Order directs agencies to plan reorganizations and reductions in force…consistent with applicable law.” That is within presidential powers. “Bottom of the plans themselves are not before this Court,” so “we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law.

In effect, Sotomayor told Jackson she had overreached, ranted, gotten the law, the legal question wrong, and what they were deciding wrong. That did not stop Jackson from issuing 15 pages of next to nothing.

So, what does this handwringing about Brown Jackson’s focus, accuracy, and judicial temperament mean?  Not much, except that when justices get the law wrong, act overtly political and personal, it lowers the whole Court’s credibility.

Judicial authority is about respect, constitutionally limited, bound up in applying laws, not creatively dressing up politics to look. They all know it – except Brown Jackson.

Justice Antonin Scalia, friend of Ruth Bader Ginsburg, wrote: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

The late Judiciary Committee Chairman and Senator Orrin Hatch wrote: “The standard must be based on the fundamental principle that judges interpret and apply but do not make law.”

Perhaps most pointedly, Senator Grassley wrote: “Supreme Court nominees should know without any doubt that their job is not to impose their personal opinions of what is right and wrong, but to say what the law is, rather than what they personally think the law ought to be.” Brown Jackson has not caught on yet.

Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC. Robert Charles has also just released an uplifting new book, “Cherish America: Stories of Courage, Character, and Kindness” (Tower Publishing, 2024).