Yesterday we took a look at Justice Barrett’s dismissal of Justice Ketanji Brown Jackson’s dissent in Trump v. CASA, Inc.. Justice Jackson’s overlong and underthought dissent seems to me most notable for its poor writing. It reads like a New York Times op-ed column, or rather like 10 of them. Times readers are probably her intended audience.
On X James Taranto draws attention to “[a]n underappreciated passage of Justice Jackson’s dissent” — “her appeal to the authority of a fictional space alien.” This is from page 19 (of 22) of Jackson’s dissent (footnote omitted):
A Martian arriving here from another planet [Ed.: Note the redundancy] would see these circumstances and surely wonder: “what good is the Constitution, then?” What, really, is this system for protecting people’s rights if it amounts to this—placing the onus on the victims to invoke the law’s protection, and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to prevent the Government from violating it? “Those things Americans call constitutional rights seem hardly worth the paper they are written on!”
These observations are indictments, especially for a Nation that prides itself on being fair and free. But, after today, that is where we are. What the majority has done is allow the Executive to nullify the statutory and constitutional rights of the uncounseled, the underresourced, and the unwary, by prohibiting the lower courts from ordering the Executive to follow the law across the board. Moreover, officers who have sworn an oath to uphold the law are now required to allow the Executive to blatantly violate it. Federal judges pledge to support and defend the Constitution of the United States against all enemies, foreign or domestic. 5 U. S. C. §3331. They do not agree to permit unconstitutional behavior by the Executive (or anyone else). But the majority forgets (or ignores) this duty, eagerly imposing a limit on the power of courts that, in essence, prevents judges from doing what their oaths require.
The Court’s opinions in the case are accessible here in their entirety. Jonathan Turley assesses the merits of Justice Jackson’s dissent in “The Chilling Jurisprudence of Justice Ketanji Brown Jackson.”
