Justice Ketanji Brown Jackson gleaned the wrong message from Sesame Street.
“One of these things is not like the others/One of these things just doesn’t belong.”
Jackson played football while her friends played basketball, hung upside-down while her friends stood right-side up, and smoked cigarettes with Maria Rodriguez while her friends innocently recited numbers with The Count.
This week, the court’s newest justice wrote a 14-page dissent to a two-paragraph ruling embraced by eight of her colleagues. The case involved an executive order that directed the executive branch to streamline its workforce through efficiency and attrition. A government employees’ union sued, and found sympathy in the Ninth Circuit Court. The U.S. Supreme Court, in a rare 8-1 decision, slapped down that West Coast court. (RELATED: SCOTUS Paves the Way for Trump to Act on Campaign Agenda)
Jackson dissented, “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.”
That sounds more like a convention speech than a courthouse opinion. Policymakers, not judges, decide the right amount of resources to allocate to schools and such. But when the judiciary imagines itself as a legislature, the consequence is that its language moves from Legalese to Wonkish — and even Politicianese.
“In my view,” Jackson wrote, “this was the wrong decision at the wrong moment, especially given what little this Court knows about what is actually happening on the ground.”
What does any of that, including the “happening on the ground” cliché, have to do with the constitutional powers of the executive? (RELATED: Ketanji Fatigue)
“In my view,” she wrote, “this decision is not only truly unfortunate but also hubristic and senseless. Lower court judges have their fingers on the pulse of what is happening on the ground and are indisputably best positioned to determine the relevant facts — including those that underlie fair assessments of the merits, harms, and equities.”
Fingers on the pulse? What is happening on the ground? Idiots depend on idioms. It reads in such a way that the reader almost expects “what can be, unburdened by what has been” to soon follow.
The hubristic decision, according to Jackson, came not from one, far-left circuit on the West Coast overruling the elected president in how he manages the executive branch, but in the Supreme Court’s decision to void this lower court’s ruling. Justice Jackson misses the profound irony in the position that an elected president cannot direct his branch of government without offending democracy, but unelected judges can.
It recalled Amy Coney Barrett’s June rebuke of her fellow three-named jurist — “We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary” — and shows that it imparted no epiphany in its target.
Not just the language and length of the dissent, but the loneliness of it suggests that Jackson performs for an audience outside of the Supreme Court. Her arguments here failed to convince even Sonia Sotomayor and Elena Kagan. They do convince the left that she sits on the extreme left of the court. And that perhaps was her point.
KBJ wants to become RBG. In Ruth Bader Ginsburg’s last years on the bench, a cult of personality surrounded the jurist. Progressives bought RBG shirts, mugs, and bobbleheads. But the octogenarian folk hero rarely wrote any important opinions of the court. KBJ tries to fill this lovable loser role. Thus far, she has mastered the “loser” part of it.
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