Outnumbered and outgunned, the Supreme Court’s three liberal justices have increasingly found themselves on different pages when it comes to navigating Donald Trump’s second stint in the White House.
According to a bombshell report in The New York Times on Friday, Justice Elena Kagan has long sought to influence her conservative colleagues with diplomatic maneuvers behind the scenes.
Justice Ketanji Brown Jackson has, meanwhile, opted for a more publicly outspoken approach. And Justice Sonia Sotomayor remains something of a bridge between the two.
While Kagan and Sotomayor are apparently worried that Jackson’s fiery dissent could limit their sway with the conservative centre, they reportedly share her sense of growing despair.
“For years, as the court has moved right, Justice Kagan has agonized over whether to be more confrontational, confidantes say, and has mostly concluded that to be effective, she must be careful about rocking the boat,” the Times reported. “But in recent months, Justice Kagan’s liberal colleague, Justice Ketanji Brown Jackson, has started warning the public that the boat is sinking.”
Those warnings have increasingly taken the form of fiery dissenting opinions, as well as a pointed tone during oral arguments. “I’m not afraid to use my voice,” Jackson reportedly told lawyers at an Indianapolis event earlier in July.
Since Trump assumed office for the second time in January, SCOTUS’ conservative majority has repeatedly ruled in the president’s favor on emergency appeals, so-called “shadow docket” orders, enabling him to carry out major actions before full legal review.
These rulings have allowed him to fire independent federal agency commissioners, dismantle parts of the Department of Education workforce, and revive sweeping immigration raids in Los Angeles, in what critics describe as a gutting of judicial checks that only serves to accelerate the MAGA agenda.
Sources close to all three liberal jurists reportedly describe their current position as an “existential dilemma.”
While the three justices declined to speak with the newspaper, its report noted a particular dispute between Justice Jackson and Justice Amy Coney Barrett, a member of the current conservative majority, as illustrative of the stark contrast between the liberals’ favored approaches.
The eventual ruling in that case limited lower courts’ ability to issue nationwide injunctions—a boon to Trump, with critics describing it as the removal of a key weapon in his opponents’ legal arsenal.
Jackson publicly called the decision a “five-alarm fire” and an “existential threat to the rule of law.” She accused the conservative majority of being “so caught up in minutiae of the Government’s self-serving, finger-pointing arguments that it misses the plot.” She warned that “a culture of disdain for lower courts, their rulings and the law… will surely hasten the downfall of our governing institutions, enabling our collective demise.”
Barrett, often considered a key swing vote, was bristling in her response, blasting Jackson for overlooking “two centuries’ worth of precedent, not to mention the Constitution itself,” suggesting she “decries an imperial Executive while embracing an imperial Judiciary.”
Washington University law professor Daniel Epps compared Kagan and Jackson to military officials unable to agree on strategy in the midst of an armed conflict. “It’s sort of like war,” he told the Times. “If you’re outgunned, do you try diplomacy or even appeasement, or do you make a noble charge and possibly get blown away?”
