What Justice Ketanji Brown Jackson Can Do on a Radical-Right Court

The swearing-in ceremony that, on Thursday, elevated Ketanji Brown Jackson to the Supreme Court was a spectacle of both power and powerlessness. Her constitutional oath, which is required of all federal officials, was administered by Chief Justice John Roberts. He is supposed to be a leader for the Court, but he doesn’t seem to have much sway with its five conservative—or, to be more accurate, radical-right—members. That became clear in Dobbs v. Jackson Women’s Health Organization, in which Justice Samuel Alito, writing for the majority, treated Roberts’s effort to slightly mitigate its destruction of abortion rights with open contempt. (Often enough, Roberts simply agrees with the five, as he did in New York State Rifle & Pistol v. Bruen, which will make it easier for people to carry guns in public places.) Jackson’s second, judicial oath was administered by Justice Stephen Breyer; he will now watch from retirement as much of the good work that he did in his twenty-eight years on the Court is undone.

Jackson took the oaths with her left hand on two Bibles held by her husband, Patrick Jackson, who is a surgeon. One was a family Bible; the other, known as the Harlan Bible, was given to the Court by Justice John Marshall Harlan in 1906, toward the end of his long tenure. (He died in 1911.) Since then, there has been a tradition of new Justices signing the flyleaf. (None of those names, until now, has belonged to a Black woman.) Harlan was known as the Great Dissenter; he was, for example, the only Justice to dissent in Plessy v. Ferguson, the 1896 case in which the Court sanctioned legal segregation. Jackson will not be quite so alone; she will likely be one of three dissenting voices in landmark cases for years to come, along with Justices Sonia Sotomayor and Elena Kagan. Harlan’s dissent was vindicated by Brown v. Board of Education of Topeka, in 1954—a lifetime later.

The Court is entering a bleak stretch of time. But it’s not the case that Jackson, Kagan, and Sotomayor’s only role will be to write angry, eloquent objections as their colleagues, say, uphold a nationwide ban on abortion—although they may need to do just that. Judging from the majority opinion in Dobbs, there is almost no doubt that the radical-right Justices would let such a ban stand, if it got through Congress and there was a President in the White House willing to sign it. (Those Justices would also likely strike down any federal law that tries to codify Roe v. Wade by guaranteeing nationwide access to abortion, whether on the grounds that it is federal overreach, or by recognizing the “personhood” of a fetus, or with whatever other rationale they might come up with, no matter how fanciful—this is not a majority motivated by a sense of consistency or intellectual integrity.) Not every case splits along the usual ideological lines—not yet, anyway—although it can feel that way, particularly during a week when the Court, by a 6–3 margin, also slashed the Environmental Protection Agency’s ability to limit greenhouse gases. Small wins will still be possible, and victories on the margins are still victories. The more interesting question may be whether the liberals can hold the conservatives back, by appealing to shame or the Constitution, as the consequences of the majority’s recklessness become even more obvious and dangerous for American democracy. With this Court, the issue isn’t just margins; it’s precipices.

A still contestable area—one in which the liberals might be able to persuade or check at least some of their colleagues—involves the peaceful transfer of power. About an hour before Jackson was sworn in, the Court announced that, in its fall term, it will hear the case of Moore v. Harper. (Generally, there need to be four Justices willing to grant certiorari—that is, to hear a case.) Moore v. Harper involves a redistricting map in North Carolina, drawn to benefit Republicans to an unseemly extent and thrown out by a state court; more broadly, it addresses what is known as the independent-state-legislature theory of electoral law. The essence of the theory is that, because the federal Constitution gives the state legislatures the responsibility for conducting elections, the rules that they write for doing so (regarding absentee ballots, districts, polling hours, etc.) cannot effectively be reviewed by state courts—or, maybe, by anyone—not even, for example, to see whether they comply with the state’s constitution. Anyone who has been following the January 6th House Select Committee hearings will recognize a garbled and even more extreme form of this argument as one of the elements in the Trump team’s scheme, after Donald Trump lost to Joe Biden, to get state legislatures to endorse slates of fake electors.

After the 2020 election, the Court declined to hear a number of cases brought by Trump and his allies as part of their effort to reverse the results. (It didn’t help their cause that many of those allies did a very poor job when it came to basic lawyering.) In December, 2020, to take one example, Ken Paxton, the attorney general of Texas, filed a suit asking the Court to block the tallying of the electoral votes of Georgia, Michigan, Pennsylvania, and Wisconsin, saying that their results were rife with irregularities that “preclude knowing who legitimately won the 2020 election.” As a constitutional and factual matter, this was an outrageous and frivolous claim, and the Court quickly said that Texas had no standing to bring the case. However, Justice Alito appended a statement to the order in which the Court dismissed the case, saying that he and Justice Clarence Thomas, at least, would have agreed to hear Texas out. And Thomas was the only dissenter when the Court ruled against Trump in a case that he had brought against the National Archives, in which he asserted a notably dubious ex-Presidential-privilege claim to deny the House Select Committee access to certain materials. In other words, in those instances, there were enough Justices who acted more like Liz Cheney than like Marjorie Taylor Greene. There is every reason to fear that claims of fraud and other Trumpian tactics will be deployed again in the 2024 election, whether the former President is on the ballot or not, and that the race will end in litigation. An urgent task for the Court’s three liberals will be keeping the anti-coup majority intact.

Jackson, meanwhile, will also have a chance to be part of critical arguments regarding the choice to end a pregnancy—the very extremism of Dobbs means that it will provoke a rush of litigation. Many of these cases will concern the right to interstate travel (and, perhaps eventually, to travel abroad), and even the ability of people in one state to communicate information about abortion to people in another jurisdiction. Others will address methods of birth control or care for women experiencing ectopic pregnancies or miscarriages. There will be cases related to the protections afforded to defendants in criminal abortion prosecutions—what can be searched, what private information demanded—and how close to death a woman needs to be before exemptions to bans that allow doctors to save her life are valid.

It won’t be easy to chip away at the Dobbs majority. Alito’s opinion takes a scornful view of rights that, it argues, were not enjoyed in past centuries—and then, in instances when, as Breyer, Sotomayor, and Kagan note in their joint dissent, “embarrassingly for the majority,” early American law did yield support for a woman’s right to end her pregnancy (often before what was referred to as “quickening,” when the movement of the fetus in the womb was noticeable), it dismisses the parts of the past that don’t fit its conclusion. It treats changes in the legal status of women, who did not have a constitutional right to vote until 1920, as irrelevant. And yet four Justices—Amy Coney Barrett, Neal Gorsuch, Brett Kavanaugh, and Thomas—joined Alito in full.

Thomas additionally wrote a concurrence exhorting his colleagues to move on to reconsider precedents recognizing rights to access contraceptives, to engage in consensual same-sex relations, and to marry a same-sex partner. Kavanaugh wrote a concurrence, too, in which he insists that “overruling Roe” does not overrule or even threaten those precedents. This is a worthless assertion—either deluded or dishonest. As the Dobbs dissenters wrote, “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” The majority opinion offers a detailed blueprint for overturning those precedents, which the dissenters call part of the “same constitutional fabric” as Roe. For that matter, Senators Susan Collins and Joe Manchin say that Kavanaugh also assured them, before his confirmation, that he wasn’t a threat to Roe. Another unhappy chore for the Court’s liberals will be determining whether anything he says can be relied upon.

On Dobbs, the differences between Thomas, Kavanaugh, and Alito seem little more than a matter of style. (Barrett and Gorsuch didn’t write concurrences, but their opposition to abortion rights was no secret.) Beyond that case, the radical-right Justices are not identical; some end up in unlikely combinations with other Justices, such as in this week’s immigration decision or when a strong dissent written by Gorsuch was joined only by Sotomayor in a case, United States v. Zubaydah, decided in March, in which the majority allowed the government to make a spurious “state secrets” claim to deny a Guantánamo detainee access to evidence about his experience of torture. And Roberts’s exact place in their ranks is an open question. (So is anything that Congress might do to change the Court’s structure in the decades ahead.) What the Justices on the right have in common, though, is a willingness to exert their power anywhere and everywhere. And that means that Sotomayor, Kagan, and Jackson are going to have some very busy years ahead. ♦

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