Why are Justices Ketanji Brown Jackson and Neil Gorsuch teaming up this Supreme Court term? What at first seems like an unusual pairing actually makes sense upon closer inspection, at least in the narrow sliver of cases where they’ve found common ground.
On Thursday — the same day the GOP majority, with Gorsuch in tow, gutted the Clean Water Act — the court issued a unanimous opinion in Tyler v. Hennepin County. Basically, the Minnesota county seized an elderly woman’s home over unpaid taxes, sold it, and kept profits that exceeded her tax debt. The justices sided with her under the Fifth Amendment’s “takings” clause, which says the government can’t take private property for public use without just compensation.
In a concurring opinion, however, GOP appointee Gorsuch and Democratic appointee Jackson joined forces on another part of the Constitution that the court’s unanimous opinion didn’t delve into: the Eighth Amendment’s ban on excessive fines. In an opinion by Chief Justice John Roberts, the court ruled for Geraldine Tyler without needing to reach the fines issue. But Gorsuch and Jackson went out of their way to note their view that that part of the Constitution also protects people against excessive government intrusion in these types of cases.
So what is it about the appointees of President Joe Biden and former President Donald Trump that led them — and them alone — to reach an agreement here? It’s not the sort of thing they’d explain in writing, so we’re left to speculate. But we can engage in some educated speculation about what brought them together: Jackson’s rare experience as a former public defender, combined with what might be called Gorsuch’s libertarianism (though he’s been notably less skeptical of state power in, say, the death penalty context).
This isn’t the first time that these two have linked up. For example, I wrote in March about Bittner v. United States, a strange case where Jackson was the only one to fully join Gorsuch’s opinion, in a dispute over banking violations. The part of his opinion that only she joined involved something called lenity — a rule that applies ambiguous laws in favor of criminal defendants or people facing civil penalties. Like Bittner, the Tyler case on Thursday also featured Gorsuch and Jackson scrutinizing the government’s economic reach. The same could be said for yet another Jackson/Gorsuch combo earlier this month, where he joined her concurring opinion that emphasized the IRS’ limited powers.
Of course, this odd couple is only so cute. It won’t sway the biggest cases on a court where the GOP’s supermajority can afford to lose a Republican appointee in Roberts and still overturn Roe v. Wade.
But even if the bigger cases are a foregone conclusion, it’s still worth paying attention to how this judicial relationship develops between two justices who could serve together for decades to come.
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