Justice Ketanji Brown Jackson unloaded on her Supreme Court colleagues Friday in a series of sharp dissents, castigating what she called a “pure textualism” approach to interpreting laws, which she said had become a pretext for securing their desired outcomes, and implying the conservative justices have strayed from their oath by showing favoritism to “moneyed interests.”
The attack on the court’s conservative majority by the junior justice and member of the liberal wing is notably pointed and aggressive but stopped short of getting personal. It laid bare the stark divisions on the court and pent-up frustration in the minority over what Jackson described as inconsistent and unfair application of precedent by those in power.
Jackson took particular aim at Justice Neil Gorsuch’s majority opinion in a case brought by a retired Florida firefighter with Parkinson’s disease who had tried to sue under the Americans with Disabilities Act after her former employer, the City of Sanford, canceled extended health insurance coverage for retirees who left the force before serving 25 years because of a disability.
Associate Justice Neil Gorsuch stands during a group photo of the Justices at the Supreme Court, April 23, 2021.
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Gorsuch wrote that the landmark law only protects “qualified individuals” and that retirees don’t count. The ADA defines the qualified class as those who “can perform the essential functions of the employment position that such individual holds or desires.”
“This court has long recognized that the textual limitations upon a law’s scope must be understood as no less a part of its purpose than its substantive authorizations,” Gorsuch concluded in his opinion in Stanley v. City of Sanford. It was joined by all the court’s conservatives and liberal Justice Elena Kagan.
Jackson fired back, accusing her colleagues of reaching a “stingy outcome” and willfully ignoring the “clear design of the ADA to render a ruling that plainly counteracts what Congress meant to — and did — accomplish” with the law. She said they had “run in a series of textualist circles” and that the majority “closes its eyes to context, enactment history and the legislature’s goals.”
“I cannot abide that narrow-minded approach,” she wrote.
Associate Justice Ketanji Brown Jackson poses for an official portrait at the East Conference Room of the Supreme Court building, Oct. 7, 2022.
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Gorsuch retorted that Jackson was simply complaining textualism didn’t get her the outcome she wanted, prompting Jackson to take the rare step of using a lengthy footnote to accuse her colleague of the same.
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.”
“By ‘finding’ answers in ambiguous text,” she wrote, “and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences.”
Justice Sonia Sotomayor, who joined parts of Jackson’s dissent, explicitly did not sign-on to the footnote.
Justice Elena Kagan, a member of the liberal wing, joined the conservative majority in all three cases in which Jackson dissented, but she did not explain her views. In 2015, Kagan famously said, “we’re all textualists now” of the court, but years later disavowed that approach over alleged abuse by conservative jurists.
United States Supreme Court (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (back row L-R) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait at the East Conference Room of the Supreme Court building, Oct. 7, 2022.
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In two other cases decided Friday, Jackson accused her colleagues of distorting the law to benefit major American businesses and in so doing “erode the public trust.”
She dissented from Justice Amy Coney Barrett’s majority opinion siding with major tobacco manufacturer, R.J. Reynolds Vapor Co., that gives retailers the ability to sue the Food and Drug Administration over the denial of new product applications for e-cigarettes.
Barrett concluded that a federal law meant to regulate the manufacture and distribution of new tobacco products also allows retailers who would sell the products to seek judicial review of an adverse FDA decision.
Jackson blasted the conclusion as “illogical” again taking her colleagues to task for not sufficiently considering Congress’ intent or longstanding precedent. “Every available indictor reveals that Congress intended to permit manufacturers — not retailers — to challenge the denial,” she wrote.
Of the court’s 7-2 decision by Justice Brett Kavanaugh, giving gasoline producers the right to sue California over limits on emission-producing cars, Jackson said her colleagues were favoring the fuel industry over “less powerful plaintiffs.”
“This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens,” she wrote.
Jackson argued that the case should have been mooted, since the Trump administration withdrew EPA approval for California’s emissions standards thereby eliminating any alleged harm to the auto and fuel industry.
The Supreme Court, Sept. 28, 2020, in Washington, D.C.
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“Those of us who are privileged to work inside the Court must not lose sight of this institution’s unique mission and responsibility: to rule without fear or favor,” she wrote, admonishing her colleagues.
The court is next scheduled to convene Thursday, June 26, to release another round of opinions in cases argued this term. Decisions are expected in a dispute over online age verification for adult websites, parental opt-out rights for kids in public schools exposed to LGBTQ themes, and, the scope of nationwide injunctions against President Donald Trump’s second-term policies.
