This time, it was Justice Ketanji Brown Jackson, who made history this year as the first Black woman on the U.S. Supreme Court. Yet, she has been criticized, demonized and maligned since childhood. She reserves her evident frustrations about the current state of the nation, its presidency, and its top court exclusively for her dissents. As she steers through these choppy waves, Jackson grabs the proverbial brass ring. In the process, she deepens her focus in order to understand just how dangerous democracy in America has become.
As this term’s “great dissenter,” Jackson continues to challenge the conservative majority that took over the court. Her dissents are more than legal arguments. They provide an essential counterbalance and a powerful call to action for the American public and lower court judges who have to interpret the Supreme Court’s often inscrutable decisions. She is a frequent, searing critic of the court under Chief Justice John Roberts. She argues that it threatens to destroy the very foundations upon which the United States is built as a nation of laws.
Jackson notably wrote a 21-page dissent against the Supreme Court’s ruling in Trump v. Casa, which she described as “an existential threat to the rule of law” and a “sad day for America.” This dissent signals her alarm at the anti-democratic path that the courts are undermining democracy. In her dissent, she invoked Ernst Fraenkel’s classic study, The Dual State. She contended that arbitrary and unchecked power is the antithesis of the rule of law.
“See E Fraenkel, The Dual State, pp xiii, 3, 71 (1941) (describing the way in which the creation of a ‘Prerogative State’ where the Executive ‘exercises unlimited arbitrariness … unchecked by any legal guarantees’ is incompatible with the rule of law)” – The Dual State
In her analysis, Jackson draws parallels between contemporary jurisprudence under former President Trump and the legal structures that existed in Nazi Germany. She cites Fraenkel’s examination of how the Nazis established two coexistent legal systems, warning against a similar drift in American law.
Jackson’s strong, principled dissenting opinions have made her a target for right-wing activists to smear her with out-of-context quotes. Charlie Kirk, a prominent right-wing figure, has labeled her as one of four Black women “affirmative-action picks” who do not deserve their positions. Such remarks are part of a larger pattern of attacks on Jackson’s credentials and legitimacy as a Supreme Court Justice.
“You do not have the brain processing power to otherwise be taken really seriously. You had to go steal a white person’s slot to go be taken somewhat seriously,” – Charlie Kirk
Even in light of these criticisms, Jackson stands firm in her hopes for justice and equity. Ten authored last term, by far the most of any justice. That’s right – in total, that includes Clarence Thomas, who wrote nine of them. Each dissent is a work of art, but they all speak to her deep commitment to the core aspirations of our democracy.
In her quest to uphold these principles, Jackson has often recalled advice from her grandmother: “Guard your spirit, Ketanji. To dwell on the unfairness of life is to be devoured by it.” This wisdom fuels her purpose and passion. It’s how she fights — she fights tenaciously and bravely for what she knows to be right, even when under fire.
In other opinions, Jackson has made known her disgust with the outcomes favored by Chief Justice Roberts and his conservative colleagues. She thinks these decisions negatively impact the public good. For example, she criticized their decision allowing Trump to cancel close to $800 million in federal health grants. This decision underscores a bad trend from the court. It indicates that political interests are prioritizing extreme political agendas over basic human rights.
Jackson’s dissents in the case Trump v. Casa, which were subject to the remarkable public dispute between Jackson and her fellow Justice Amy Coney Barrett. Barrett rejected Jackson’s arguments, deeming them “untethered to traditional legal logic.” This illustrates the fault lines between justices on their methods of statutory interpretation and originalism vs. living philosophy.
“We will not dwell on Justice Jackson’s argument,” – Amy Coney Barrett
Jackson very deliberately moves within this complicated ecosystem. She continues to be a beacon of purpose and possibility, not giving in to despair. “Instead I chose possibility. I chose purpose,” she stated, reinforcing her commitment to justice and legal integrity.
Legal experts and advocates have begun to view Jackson’s powerful dissents as critical canaries in the coal mine. They amplify the troubling – and sometimes dangerous – direction of American democracy. Aziz Huq, a professor of law at the University of Chicago, emphasized this point:
“It’s hard not to see that as a kind of warning,” – Aziz Huq
Jackson’s clarion call carries further than the Supreme Court’s chambers. Her dissenting opinions provide a clear window into her animating fears about the threats to democracy and the rule of law. She takes the legal establishment to task for defending such interpretations. Her ultimate aim is to trigger a national dialog on accountability and industrial justice in America.