The Supreme Court operates on rigid custom and protocol. The court begins its term every first Monday in October and ends (“rises”) around the end of June. It votes in conferences that only the justices attend, and in strict order from most to least senior. Opinions are assigned by the senior justice on that side of the decision. The decisions themselves are worked out on written drafts that messengers circulate, walking the quiet carpets of the court.
In this hidebound atmosphere, even heated disagreements between factions of the court play out in largely decorous terms in the form of legal analyses that are directed toward one another’s arguments, not the political sphere or the outside world.
Special rules apply to the most junior of the justices. They are typically under pressure to go along rather than write solo opinions. Chief Justice John Roberts didn’t write his first lone dissent until his sixteenth year on the court.
So when Justice Ketanji Brown Jackson took the bench as the junior justice in 2022, after eight-plus years on the D.C. District Court, she might have been expected to be a quiet presence, biding her time and waiting her turn.
But Jackson arrived at the court at a particularly perilous time for the law and American society, when the conservative supermajority was issuing a series of controversial opinions that shifted the law sharply rightward. The stakes turned dire when Donald Trump returned to the presidency and pushed the justices to accede to a form of executive power bordering on autocracy.
With little hope of altering the court’s decisions on these hyper-consequential cases, Jackson chose to depart from the model of the passive, go-along junior justice. More than speak up, she has chosen—even more than her progressive colleagues, Justices Elena Kagan and Sonia Sotomayor—to call out to the American people the grave consequences of the court’s most far-reaching opinions.
Jackson has perceived those cases—accurately—as emergency break-glass moments, and she has broken the glass.
So in the court’s catastrophic 2024 immunity decision, Trump v. United States, which continues to empower Trump’s serial lawlessness and disregard of the Constitution, Jackson joined Sotomayor’s dissent but also wrote separately to explain what the decision “means for our Nation moving forward.”
She explained, “The Court has now declared for the first time in history that the most powerful official in the United States can … become a law unto himself.” Turning to the decision’s “practical consequences,” Jackson added that they were “a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government.”
The intervening year has only served to prove her case.
Jackson brought the same sense of urgency and appeal to the people in her dissent in the final case of this term, Trump v. CASA Inc., the ruling on universal injunctions in the birthright citizenship order. The case is a disaster for constitutional rule, rivaled only by the immunity decision.
Justice Sotomayor pointedly removed the traditional “respectfully” from her opinion, saying only “I dissent.” In the brandy-parlor world of the court, that’s a seismic rebuke. But it doesn’t register that strongly in American society. Jackson, by contrast, coupled her legal takedown of the court with a call to recognize its sweeping impact on history and the decline of democracy: “The decision … gives the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate.”
And she added, most memorably: “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” (Emphasis mine.)
That’s strong stuff, and if written in an important but not democracy-threatening case, it might seem over the top. What marks Jackson’s valor is that the cases in which she sounds the alarm are precisely the rarest of cases, in a uniquely fragile moment for the country, in which the court is more than playing with fire—it’s enabling Trump in ways that may prove cataclysmic for the rule of law.
Her senior colleagues found her opinion irksome. Justice Amy Coney Barrett upbraided Jackson superciliously for advancing arguments “tethered neither to [legal] sources nor, frankly, to any doctrine whatsoever.” But Jackson, while friendly to her colleagues and of good cheer, is uncowed. She declines to stay in her assigned role and voice when the court is issuing cases that are hacking away at the foundations of our constitutional system.
Like the child in the fable “The Emperor’s New Clothes,” she is the youngest justice, bringing not just analytic rigor but moral clarity, driving home the broader importance of the court’s demolition job. Where the stakes are existential, she calls it true.
