Breaking down Supreme Court ruling on affirmative action
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The Supreme Court’s term concluded last month after issuing blockbuster opinions on cases dealing with the First Amendment, affirmative action and environmental protection.
In most of those decisions, the court’s newest member, Justice Ketanji Brown Jackson, dissented from the court’s majority. Not only did she author a record number of solo dissenting opinions, Jackson also made history by speaking in oral arguments more than any first-term justice in history.
Jackson came in with expectations from some progressive Democrats that she would emerge as a liberal champion on the court, similarly to how Justice Antonin Scalia became a symbol for conservatives with far-reaching influence. However, some critics said Jackson's high-publicity opinions are not likely to prove a path forward to reshape the court.
"It seems like more she's writing to make a point to suggest that she disagrees with the majority or to the public audience, identifying problems with what she sees [with] the majority rather than views that that seems to be laying groundwork for future courts to adopt. But that's hard to say from one term," Notre Dame law professor Derek T. Mueller said in an interview with Fox News Digital.
Ketanji Brown Jackson, then-nominee for associate justice of the Supreme Court, leaves a Senate Judiciary Committee confirmation hearing in Washington, D.C., on March 23, 2022. (Julia Nikhinson / Bloomberg via Getty Images)
Mueller said while it is hard to tell from one term how Jackson will make her imprint on the court, it seems her dissents are designed to make a point to the public audience rather than laying groundwork for future cases.
"In terms of separate writings, it's hard to know. Are you writing separately just to make a point or are you writing separately because you are sort of laying the groundwork for potentially in the future turning that dissent into a majority or being able to coalesce views around your position? To me, it seems like more the first," said Mueller, an expert in elections law.
Empirical SCOTUS, a database that collects data points on the court, noted that "the main distinction this term was that with the addition of Justice Jackson we saw the most active new justice at oral arguments probably in the history of the Court and definitely over the past 30+ years."
Jackson not only spoke more than any new justice in her first term, but according to Empirical SCOTUS, she also spoke more than any other sitting associate justice in the 2022-2023 term. She also had the largest proportion of solo dissents relative to total dissenting votes in the term, more than any first-term justice since Justice Neil Gorsuch took the bench in 2017.
"She's definitely bringing strong and strident rhetoric. And right now that is something that you see a lot of people looking for, it provides great clickbait. But is that what is going to influence the court in the long run? I would say probably not," JCN President Carrie Severino told Fox News Digital.
"It seems that Justice Jackson is speaking primarily to people who agree with the arguments she makes in her dissents," Severino said. "With that strategy, she is going to appeal to many people who already agree with her policy-based approach to the law, but she probably won't have much sway over her colleagues on the Court."
"And it's certainly not the language that's going to appeal to or convince anyone who is in the middle on the court," she added.
Severino noted that a justice's written opinions provide only limited information about a justice's influence, and that often a justice's impact on the Court is not publicly known until many years later.
An example is a pair of cases from Justice Thomas' first term, Foucha v. Louisiana and Hudson v. McMillian. In both cases, the eventual publication of Justice Harry Blackmun’s papers showed that Justice Thomas had started out as the lone dissenter, but other justices eventually joined his persuasive dissents.
Then-Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill on March 23, 2022. (AP Photo / Andrew Harnik)
Dissenting opinions from associate justices like Clarence Thomas and the late Antonin Scalia — who found themselves in the minority of key rulings early in their tenures — have been included in law school textbooks for decades and played a role in shaping a generation of legal advocates and the decisions of the current Court.
However, Severino said that while it is too soon to tell how Jackson’s work will be memorialized, problematic elements in her dissents like quoting faulty statistics and "historically incorrect" approaches to the law deem them questionable as to how they will be revered by legal scholarship in the future.
"Are you writing separately just to make a point or are you writing separately because you are sort of laying the groundwork for potentially in the future, turning that dissent into a majority[?]
"I think this is a contrast with Justice Scalia. He was really encouraging people to look at the Constitution and different provisions in a way that they had not been seeing them before. I'm not sure that I see her doing that in the same way," Severino said.
However, Elizabeth Wydra, president of the Constitutional Accountability Center, praised Jackson's first term that signaled a possible "real, sustained challenge" to the conservative majority, reaching liberal results while using a textualist approach to interpreting the Constitution.
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Supreme Court Justice Ketanji Brown Jackson. (Tom Williams / CQ-Roll Call Inc. via Getty Images / File)
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"In her first term on the bench, Justice Jackson challenged the dominant conservative narrative of the Constitution, marshaling constitutional history to make clear that our national charter demands meaningful equality and supports a genuinely thriving multiracial democracy," Wydra told the New York Times.
"This could mark a new chapter for the court where we see a real, sustained challenge to the conservative originalism of the current supermajority, equally rooted in text and history," she said.
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