JONATHAN TURLEY: Justice Jackson just showed why Democrats are desperate to pack the Supreme Court
Since her appointment by President Joe Biden, Supreme Court Justice Ketanji Brown Jackson has quickly developed a radical and chilling jurisprudence. Her frequent sole dissents and accusatory rhetoric have drawn not just the ire of her conservative colleagues but also that of her liberal colleagues. This week, that tension deepened with a stinging rebuke from Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch.
At issue is the finalization of the court’s opinion in Louisiana v. Callais, where the court ruled 6-3 to bar racial gerrymandering. The court reaffirmed the use of Section 2 of the Voting Rights Act to ban intentional racial discrimination in the design of voting districts but effectively found many districts to be unconstitutional in their current form.
There is no reason why the decision should not be finalized except for a blatantly partisan effort to protect Democrats from losing seats in the midterm elections. After all, if these districts are unconstitutional, why shouldn’t states guarantee that voters are given representatives chosen free of racially discriminatory preferences?
That question is even more confusing given the long wait for this opinion. Not only was the case reargued, but there were growing complaints about the delay in releasing the opinion.
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Complaints increased after a recent book allegedly reported that Justice Elena Kagan had a vocal confrontation with her colleague, retired Justice Stephen Breyer, over his push to release the dissents in Dobbs after the leaking of that opinion. Breyer reportedly agreed with Chief Justice John Roberts that the conservative justices were facing increased death threats due to the delay. Kagan allegedly wanted to further delay the release.
In the Callais decision, the delay was curious since there were six solid votes for the majority and little fracturing among the opinions. Indeed, the majority opinion's references to the Kagan dissent are relatively brief. Nevertheless, the delay has made it very difficult for states to make changes. A few are moving to delay their primaries or draw new maps under extremely tight calendars.
Regardless of the delay, there is no cognizable or principled reason to withhold the opinion to preserve unconstitutional districts. The case has already been on the docket for an unusually long time due to reargument.
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In its one-paragraph order, the court acknowledged that the Supreme Court’s clerk normally waits 32 days after a decision to send a copy of the opinion and the judgment to the lower court. However, it noted that the defenders of the challenged districts had "not expressed any intent to ask this Court to reconsider its judgment." Conversely, the other parties raised the need for states to address the impact of the ruling with the approaching elections.
Jackson stood alone in demanding that the unconstitutional districts be effectively preserved for the purposes of this election — guaranteeing Democratic seats in the midterms that could be lost in nonracially discriminatory districts. Neither Kagan nor Justice Sonia Sotomayor would join her in the dissent, despite dissenting from the Callais decision itself.
However, it was her language again that drew the attention of her colleagues.
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Justice Jackson lambasted the court’s ruling, stating that it "has spawned chaos in the State of Louisiana." In an Orwellian twist, Jackson suggested that others were playing politics as she sought to effectively protect unconstitutional Democratic districts. She suggested that the case exposed "a strong political undercurrent."
In arguably the most insulting line, she lectured her colleagues that this case "unfolds in the midst of an ongoing statewide election, against the backdrop of a pitched redistricting battle among state governments that appear to be acting as proxies for their favored political parties."
She further said that, rather than avoid "the appearance of partiality," the court’s action "is tantamount to an approval of Louisiana’s rush to pause the ongoing election in order to pass a new map."
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Justice Alito had finally had enough. He noted that her reliance on the 32-day period was a "trivial" objection that put form above substance since no party had asked for reconsideration. It would be waiting for 32 days for no purpose, while the other parties had stated a reasonable and pressing need to finalize the opinion.
He chastised Jackson for a dissent that "lacks restraint." He denounced the dissent as making "baseless and insulting" claims. He particularly objected to the charge that her colleagues were engaging in "an unprincipled use of power," calling it "a groundless and utterly irresponsible charge."
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What is even more chilling than Jackson's jurisprudence is the fact that she is often cited as the model for Democrats seeking to pack the court with an instant majority if they retake power. This and other Jackson judicial dissents show why Democrats are so confident that packing the court will yield lasting control of the government.
Jackson recently told ABC News that "I have a wonderful opportunity to tell people in my opinions how I feel about the issues, and that’s what I try to do."
For some of her colleagues, that cathartic benefit is coming at too high a cost for the court.