Welcome back, Deadline: Legal Newsletter readers. What can a footnote, of all things, tell us about the state of the Supreme Court and various splits among the justices?
Justice Ketanji Brown Jackson wrote the footnote in question. It came in her dissent from a decision Friday in a case called Stanley v. City of Sanford. Led by Justice Neil Gorsuch (Jackson’s sometimes-partner in certain libertarian-ish side-quests), the majority ruled against Karyn Stanley, a former firefighter who had sued a Florida city over health-insurance retirement benefits.
But disagreement over statutory interpretation prompted a heated exchange between the majority and the dissent. Gorsuch said Jackson bucked “textualism,” referring to the strict reading of statutes without regard to other considerations, like congressional intent behind the law. The Trump appointee accused the Biden appointee of doing so in an attempt to “secure the result” she sought.
That amounts to fighting words in a profession that prides itself on the narrative that judges decide cases through neutral mechanisms without regard to outcomes.
Jackson fought back in that footnote — footnote 12, to be exact. She said Gorsuch’s accusation of motivated reasoning “stems from an unfortunate misunderstanding of the judicial role.” Indeed, she said, accounting for congressional intent helps avoid injecting one’s view into the law. “By contrast,” she wrote, “pure textualism’s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences.” That is, it’s the majority’s approach that lets judges reach their preferred results.
To be sure, debates over textualism and the judicial role aren’t new. Indeed, Jackson’s predecessor, Stephen Breyer, famously dueled on the subject with Gorsuch’s predecessor, Antonin Scalia.
But Jackson wasn’t speaking on behalf of the court’s beleaguered Democratic minority. In fact, she was all alone. Justice Elena Kagan joined Gorsuch in the majority, while Justice Sonia Sotomayor joined parts of Jackson’s dissent but explicitly didn’t join her footnote.
What’s going on here? Keep in mind that an intra-Democratic split, tame as it may be, has been brewing for some time. I had just written about its appearance in the Skrmetti case on gender-affirming care on Wednesday, and it also surfaced in multiple cases decided Friday. In one of those new decisions, on emissions regulations, Kagan joined Justice Brett Kavanaugh’s majority opinion, while Sotomayor and Jackson each dissented separately. Jackson lamented in hers that the environmental case “gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.”
Again, the intra-Democratic split didn’t start this week. We’ve seen it throughout the term, like when the court sided with the Trump administration on legal protections for more than 500,000 immigrants in May, while only Jackson and Sotomayor dissented. Those two justices were likewise the only dissenters from the court’s recent rejection of an appeal claiming racial discrimination. So, we have Kagan sometimes joining the Republican appointees while Sotomayor and Jackson go the other way and sometimes each goes their own way within that departure. What does it mean? There are different ways to look at it — many more than can fit in this brief reflection. And we should be careful not to draw any extreme conclusions, because Kagan isn’t shy about taking the majority to task when she thinks it’s warranted. But one way to look at it is simply that Kagan is the most moderate of the three Democratic appointees, and it’s not more complicated than that. Another way, which isn’t mutually exclusive from the first, is that Kagan seeks to build goodwill with the entrenched Republican-appointed supermajority — though, if true, it’s unclear what she has won, or will win. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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