The New Yorker:
The newest Justice is increasingly willing to condemn the actions of the conservative majority, even when that means breaking with her liberal colleagues.
By Ruth Marcus
Being a liberal justice on a Supreme Court with a six-Justice conservative super-majority can be a miserable job. The opportunities for victory are scant; frustration is the baseline. There are two different models for dealing with this reality, approaches that can broadly be described as strategic and rhetorical. A strategic Justice can try to lure a conservative vote here and there, to cobble together an elusive majority and at least limit the damage. A rhetorical Justice can call out the conservatives for the sake of educating the current public and planting a flag for history. Or she—and the three liberals are all women—can tailor her response to the specific case.
Elena Kagan exemplifies this last, hybrid model. She is more than willing to let the majority have it when that is warranted; she also forges compromises with individual conservatives when it is possible to pick up their votes. The newest member of the Court, Ketanji Brown Jackson, is the epitome of the rhetorical Justice. Last week, as the Court prepared to finish its work for the year, Jackson issued a pair of dissents that signalled her despair over the Court’s trajectory, her refusal to sugarcoat its behavior, and her willingness to break with her liberal colleagues, Kagan and Sonia Sotomayor.
New Justices tend to hang back; Jackson, now in her third term, spoke up from the start. In her first eight oral arguments, she spoke eleven thousand words, twice as many as the next most loquacious Justice, Sotomayor. That tendency has persisted—TheHill found that Jackson spoke seventy-five thousand words this term, fifty per cent more than Sotomayor—and it isn’t the only measure of Jackson’s assertiveness. As the Times Supreme Court correspondent Adam Liptak noted at the conclusion of Jackson’s first term on the Court, Chief Justice John Roberts “did not write his first solo dissent in an argued case until 16 years into his tenure. Justice Jackson issued three such dissents in her first term.” Jackson’s conduct this term—in her work on the Court and her comments outside it—is not different so much as it is more so: more alarmed at the direction the Court and the country are heading, and more willing than ever to go it alone in expressing that distress.
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