All Hail the Imperial Judiciary!
Justice Ketanji Brown Jackson's curious conception of "our democracy"
Ketanji Brown Jackson of the Supreme Court is having one of those moments, beloved of Democrats, progressives and the media—but I repeat myself—when a thoroughly mediocre person becomes a Hero of the Resistance.
Shall we get one thing out of the way immediately? Justice Jackson is in over her head: She has no more understanding of jurisprudence than I do of the Unified Field Theory. This was evident from her interview with ABC News Live Prime anchor Linsey Davis at the Global Black Economic Forum. Jackson gushed that her position on the Court gave her a splendid opportunity “to explain my views about the way our government does and should work” and “to tell people, in my opinions, how I feel about the issues.”
Of course, Jackson’s views and feelings are—or ought to be—largely irrelevant in the context of jurisprudence at the pinnacle of the system. But to her way of thinking they are not, and this characteristic intellectual vice of progressivism, the prioritization of cosmic justice over actual justice, permeates her commentary and written opinions. By cosmic justice I mean the view that outcomes matter more than process. By actual justice I mean adherence to the principle of equal justice under law.
Let us say, for example, that a construction worker who suffered an injury on the job is suing his health insurance provider, who has declined to cover some of the medical expenses involved. Actual justice demands that the case be decided on the merits: Health insurance coverage is a form of contract. The core questions at issue, therefore, are (1) whether the contract is legally binding and (2) what medical conditions and medical services the contract does and does not cover. Secondary questions might involve deceptive practices of various kinds by the provider, fraudulent claims by the worker, etc. The answers to these questions yield a jury verdict or an appellate court ruling—sometimes in favor of the plaintiff, sometimes in favor of the defendant.
Human nature being what it is, equal justice under law in America—or anywhere—cannot be one hundred percent guaranteed. The best we can do is to embrace it as a principle, an objective to be striven for, and to correct the inevitable injustices when we can.
On the other hand, cosmic justice is much simpler. It demands a verdict or ruling in favor of the “little people” against the “moneyed interests”—or, if you will, in favor of victims against evildoers. The judicial system, you see, exists to comfort the afflicted and afflict the comfortable; judges should behave as social justice warriors in black robes. If that approach to jurisprudence ever gains the upper hand, the law would take a back seat to the feelings and opinions of ideologues like Justice Jackson.
A real-world example of cosmic justice is Roe v. Wade, the 1973 decision of a liberal Supreme Court that magically transformed abortion into a constitutional right. Since the Constitution has nothing to say about abortion, the liberal justices just spitballed their way to a ruling. They purported to discover that the Fourteenth Amendment incorporated a “right to privacy” that extended to abortion, effectively superseding all relevant state laws.
Alas, however, Roe v. Wade did not take abortion off the table as a political issue. On the contrary, it became central to national politics, with the broad Left committed the most expansive interpretation of the ruling, and the broad Right seeking to limit it wherever possible. The sorry state to which the federal judicial confirmation process has declined is largely attributable to Roe v. Wade—as shown by the disgraceful attempt to derail the nomination of Brett Kavanaugh by destroying his reputation with a false charge of rape. Finally, with its 6-3 ruling in Dobbs v. Jackson Women’s Health Organization (2022) the Supreme Court overturned both Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, a related case.
The intemperate tone of Justice Jackson’s written opinions reflects the general progressive attitude toward jurisprudence. Take, for example, this choice morsel from her dissent in Trump v. CASA (2025):
I write separately to emphasize a key conceptual point: 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. It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior.
When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution—please allow this. That is some solicitation. With its ruling today, the majority largely grants the Government’s wish. But, in my view, if this country is going to persist as a Nation of laws and not men, the Judiciary has no choice but to deny it.
Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law—full stop.
This, and everything that follows it, is balderdash. The question before the Court in this case was whether federal district courts have power to issue preliminary injunctions covering the whole country. The majority said no, drawing a distinction between the opinion of the court in the early stages of a case and its eventual verdict or ruling. At the preliminary stage, the unconstitutionality of, say, a presidential executive order is merely an allegation. Only as the case is adjudicated might it evolve into a fact.
A federal district judge in Rhode Island or Indiana may conclude that the plaintiffs in such a case have a good chance of prevailing on the merits. An injunction covering those plaintiffs might therefore be warranted. But contra Justice Jackson, it’s not the function of the federal judiciary proactively to police the executive or legislative branches of government with broadly drawn preliminary injunctions. As Justice Amy Coney Barrett observed with some exasperation in her opinion for the majority, Jackson’s dissent embodied “a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush.” Indeed: Her dissent was a jeremiad, promoting the concept of an unelected imperial judiciary, superior to the other two branches of government.
Barrett added that Jackson’s conception of the federal judiciary’s role has absolutely no basis in the Constitution. (And I would add that anyone who uses a phrase like existential threat to the rule of law has no business sitting on the nation’s highest court.)
Justice Jackson’s written opinions tend to be like that: free-floating, wholly or partially beside the point, hyper partisan. One gathers the impression that she’s made herself unpopular with her colleagues, even her progressive comrades, Justices Kagan and Sotomayor—who declined to concur in her dissent on Trump v. CASA.
The Resistance is thrilled with Jackson, however. Democrats and progressives fervently applauded her fiery dissent in Students for Fair Admissions v. Harvard (2023). Vice President Kamala Harris, as she was then, praised it as “probably one of the most brilliant dissents that any justice of the United States Supreme Court has ever written.” (All I can say is: Consider the source!) In fact, Jackson’s dissent reads like something out of a CRT seminar: a plea for racial preferences in the name of antiracism.
But isn’t Justice Jackson speaking truth to power? Isn’t she fighting for the little people? Isn’t she furthering the cause of cosmic justice? Well, no, not really. In Students for Fair Admissions v. Harvard she stuck up for the odious and divisive policy of race-based affirmative action. And in Trump v. CASA Jackson promoted anti-Trump lawfare by way of judicial dictatorship.
All this just goes to show that the real threat to “our democracy” is the progressive idea of cosmic justice.
Different opinions backed by fact-based belief are the pillars of discussion and compromise. Unfortunately the liberal-progressive side of the argument tends to argue their feelings instead of facts, and refuse to even look at anything that disagrees with their "religion".
The issue ultimately is that the founders only mentioned the Supreme court and its jurisdiction, but nothing else. The federal courts were created by Congress. The federal judiciary's power is not inherent. Meanwhile if the dems are upset all Congress has to do is pass a law creating the right of a judge to pass a national injunctions. At that point the Court could do nothing about it. Barring a law outlining powers though, SCOTUS will interpret existing historical and legislative discussions to come to a conclusion.
Justice Ketanji though never struck me as particularly intelligent. Her politically woke nonsense that she couldn't define the word 'woman" because she wasn't a biologist is simply indicative of someone incredibly stupid.