The Liberal Justices Are Not A Monolith

And of the three, Justice Jackson is emerging as the most full-throated progressive, in the mold of Justices Brennan and Douglas.

Justices Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan (photo by the Supreme Court of the United States via Getty Images).

Observers of the U.S. Supreme Court commonly refer to “conservative” versus “liberal” justices, i.e., Republican versus Democratic appointees. It’s a useful shorthand or analytical lens, despite both unanimous cases and occasional surprises, given the tendency of the members of each bloc to vote together—especially in the most consequential and controversial cases, such as the Court’s recent ruling against universal injunctions in Trump v. CASA, Inc.

But convenient labels shouldn’t obscure the interesting internal differences separating the members of each group. I’ve previously discussed the differences among the members of the six-justice conservative coalition—and significant distinctions exist between the trio of liberals as well, illustrated by two recent cases from the emergency docket (on in my preferred parlance, the short-order docket).

First, in Department of Homeland Security v. D.V.D., Justices Sonia Sotomayor and Ketanji Brown Jackson dissented from the Court’s decision allowing the Trump administration to send eight migrants to South Sudan. Justice Elena Kagan concurred, pointing out that the Court had previously voted to allow this action by the administration—and while she continued to disagree with her colleagues’ earlier decision, she didn’t see how a lower court could bar the administration from doing something the Supreme Court already declared permissible.

Second, in Trump v. American Federation of Government Employees, the Court allowed President Donald Trump to proceed with his plans to make significant cuts to the federal workforce, with Justices Sotomayor and Kagan voting with the majority. Justice Jackson filed a vigorous, 15-page dissent, decrying her colleagues’ ruling as “not only truly unfortunate, but also hubristic and senseless.”

These two cases embody differences between the liberals that can be seen within their jurisprudence more generally. Justice Kagan, the most moderate of the three, sided with the administration in both D.V.D. and AFGE. As for merits cases, i.e., those decided after full briefing and argument, she was in the majority 83 percent of the time in the Term just ended, according to SCOTUSblog—the highest percentage of the liberals, reflecting her willingness to side with the conservatives from time to time.

In methodological terms, Justice Kagan also diverged from her fellow liberals. Her D.V.D. concurrence reflected her general practice of “focus[ing] more directly on the law as it maps onto any given case,” as Dahlia Lithwick wrote in Slate—as opposed to situating each decision as part of a larger project, whether by the Trump administration or the conservative supermajority, that must be resisted.

It also embodied Justice Kagan’s very law-centric approach. In the words of Professor Stephen Vladeck of Georgetown Law, she highlights “the strongest legal objections” to the conservatives’ position, instead of “throwing the kitchen sink (including legal, political, and moral arguments) at the problem.”

Justice Sotomayor landed in between Justices Kagan and Jackson. She voted against the administration in D.V.D. but for the administration in AFGE, splitting her votes. Looking more broadly at merits cases, she was in the majority 78 percent of the time—less often than Justice Kagan, but more often than Justice Jackson.

Voting against the administration in both D.V.D and AFGE, Justice Jackson wound up as the most left-leaning of the liberals. In merits cases, she was in the majority only 72 percent of the time—the lowest of any of the nine justices.

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Looking beyond their votes to their voices, Justice Jackson employed the most impassioned rhetoric in her opinions from last Term. As Professor Jonathan Adler of William & Mary Law School told Justin Jouvenal of The Washington Post, “She’s staked out positions and made claims that appear to be beyond what her colleagues are willing to sign on to. In some cases, it may be she’s making claims her colleagues don’t agree with or think are prudent to put forward.”

In CASA, for example, Justice Sotomayor wrote a fairly traditional dissent, joined by Justices Kagan and Jackson—while Justice Jackson wrote a dissent of her own, joined by neither of her fellow liberals, that had a far more critical tone. It reflected what Matt Ford described in The New Republic as “a growing willingness to criticize her colleagues and the Trump administration in both legal and nonlegal terms…. not merely arguing that her colleagues are wrong about the legal questions before them, but that their goals and efforts are not exactly judicial in nature.”

In her dissent, Justice Jackson condemned the Court’s decision in CASA as “an existential threat to the rule of law,” adding that it “has put both our legal system, and our system of government, in grave jeopardy.” This led the author of the majority opinion, Justice Amy Coney Barrett, to respond with unusual force, condemning Jackson’s dissent as being “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.”

My prediction is that over time, Justice Jackson will stake out an even clearer position as the most liberal of all nine justices. Issues raised on the emergency docket often return to the Court as merits cases—and Justice Jackson, who has sided against the administration on the emergency docket more often than any justice, will likely retain that position when voting in the related merits cases.

In terms of her voice, I believe that Justice Jackson will become the most full-throated liberal the Court has seen in decades, the likes of which we haven’t seen since Justices William Brennan and William Douglas. She’ll dissent more frequently and vociferously than the other Democratic appointees—and based on somewhat different considerations than her colleagues.

Take the CASA case. In her majority opinion, Justice Barrett contrasted the Sotomayor dissent, which “focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity,” with the Jackson dissent, which “chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.” From Justice Jackson’s perspective, not rigidly adhering to doctrine might be a feature rather than a bug. As Adam Feldman wrote at Empirical SCOTUS, she takes “a big-picture approach” to cases, focused less on legal niceties and more on “history, civil rights, and real-world stakes.”

Consistent with this big-picture approach, Justice Jackson places less emphasis on statutory text and more emphasis on purpose (or at least her perception of a provision’s purpose, independent of text). In Stanley v. City of Sanford, the Court ruled against a retired Florida firefighter in a benefits-related case arising under the Americans with Disabilities Act (ADA). Justice Jackson dissented, writing that “no one seriously disputes that the [ADA] prohibits disability discrimination with respect to retirement benefits”—but “by viewing this case through the distorted lens of pure textualism, the Court misperceives those protections today.” She argued that Justice Neil Gorsuch’s majority opinion, by focusing so intensely on text, “overlooks both the actual facts presented in this case and the clear design of the ADA, to render a ruling that plainly counteracts what Congress meant to—and did—accomplish.”

Furthermore, as we’ve already seen in some of her work, Justice Jackson writes opinions that are intended not just for lawyers and judges, but for the media and, ultimately, the American people. As appellate litigator Brian Burgess, a partner at Goodwin and former Sotomayor clerk, said to Maureen Groppe of USA Today, “I can see Justice Jackson evolving into someone that wants to speak directly to the public to express the concerns of [the liberal] side of the court.” [UPDATE (6 p.m.): For more on this point, check out this excellent New York Times piece by the noted linguist John McWhorter, who analyzes—and defends—Justice Jackson’s conversational, informal prose style.]

At an event last year at the Kennedy Center to discuss her memoir, Lovely One, Justice Jackson recounted how her mother enrolled her in a public-speaking program when she was a girl, because “she wanted me to get out there and use my voice.” And whether or not you like the tune she’s singing, there’s no denying that Justice Jackson is making her voice heard at One First Street—loud and clear.

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A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.

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