Justice Jackson, Opinion Journalist

By Charles C. W. Cooke

Thursday, July 10, 2025

 

Justice Ketanji Brown Jackson likes being a member of the Supreme Court. In an interview at the Global Black Economic Forum on Tuesday, Jackson enthusiastically submitted that her role accords her an opportunity “to explain my views about the way our government does and should work” and “to tell people, in my opinions, how I feel about the issues.”

 

I wonder: Has Justice Jackson considered starting a Substack instead?

 

There are a number of words in Jackson’s answers that do not belong. “Feel” is one. The other is “should.” “Should,” in particular, does not tally with Jackson’s role. “Should” is the preserve of the voters, of Congress, and, within its limited realm, of the presidency. It is not the job of a judge who, properly construed, must be confined to “is.” Our Constitution tells us how our government works, and the statutes passed by Congress and the states fill in the rest. If one disagrees with the fruits of either, one may lobby for an amendment under Article V, or, at the legislative level, one may push for a change to the law. One cannot, under any circumstances, demand that a friendly judge substitute what is for what she believes ought to be.

 

Perhaps you think I am being unfair to Jackson? If so, I would draw your attention to the criticisms that have been leveled at her during just the last two weeks. In a decision released on June 27, Justice Amy Coney Barrett felt obliged to chide Jackson for having penned a dissent that was “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself”; for having ignored “conventional legal terrain” in favor of issuing “a startling line of attack” that was not “tethered . . . to any doctrine whatsoever”; and for having denigrated the work of the majority opinion and the principal dissent as “boring ‘legalese’” that was obsessed with a “mind-numbingly technical query.” On July 8, Jackson’s ideologically sympathetic colleague, Justice Sonia Sotomayor, joined the fray, chastising Jackson for having written a fiery dissent that had nothing whatsoever to do with the question that had been brought before the Court. “I agree with Justice Jackson that the President cannot restructure federal agencies in a manner inconsistent with congressional mandates,” Sotomayor wrote, before noting calmly that:

 

Here, however, the relevant Executive Order directs agencies to plan reorganizations and reductions in force “consistent with applicable law,” App. to Application for Stay 2a, and the resulting joint memorandum from the Office of Management and Budget and Office of Personnel Management reiterates as much. The plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law.

 

Jurisprudentially, Justices Barrett and Sotomayor do not have a great deal in common. In both cases, though, the message being conveyed is clear: We hear cases and controversies; we are limited to the facts before us; and, when formulating our response, we are obliged to make comprehensible arguments. That this rebuke has been delivered to Jackson twice in a fortnight — from both the careful Barrett and the partisan Sotomayor — is extremely telling. In the course of her interview with ABC, Justice Jackson said that she knows that “people are watching” her and that she wants those “people to see and know that [she] can do anything, just like anyone else.” The harsh, but ineluctable, question that one must now ask is, “Can she?”

 

I am an originalist in constitutional law and a textualist in statutory interpretation, and, in consequence, I am not primed to admire Justice Jackson. In my estimation, there is only one way of squaring our democratic system of government with the awesome power of judicial review, and that is for the judges who wield that power to subordinate their own preferences and stick steadfastly to the meanings that obtained when our laws were passed. At present, we have six — sometimes five — Supreme Court justices who attempt to do this, and we have three who do not. In my view, those three present a serious challenge to the stability of our constitutional order, and, in an ideal world, they would be nowhere near the reins of power. Nevertheless, in the short amount of time that she has spent on the Court, Justice Jackson has managed to set herself apart within that trio by declining even to pretend that she understands the purpose of her job. Justice Elena Kagan’s opinions are the work of an intellectually brilliant apparatchik. Justice Sotomayor’s are the product of a quotidian political hack who is not savvy enough to comprehend that we can all see through the ruse. Justice Jackson’s are . . . well, she put it superbly herself: They are the merchandise of a figure whose desire is to “tell people, in my opinions, how I feel about the issues.” Subscribe today, for just $6/month, plus tax.