Justice Ketanji Brown Jackson, appointed to the Supreme Court in 2022 by President Joe Biden, recently issued two notable dissents challenging the prevailing judicial approaches favored by her colleagues. In her pointed critiques, Jackson labeled textualism as “incessantly malleable” and suggested that its usage sometimes biases decisions in favor of well-financed entities over ordinary citizens. The full article can be accessed here.
In the case of Stanley v. City of Sanford, where the majority determined that the Americans with Disabilities Act does not permit retirees to sue former employers for post-employment benefits, Jackson underscored how textualism might disguise personal judicial preferences as statutory interpretation. She argued that textualism’s over-reliance on the plain text, without considering broader legislative intent, allows for judicial outcomes aligned with desired results, especially when interpretations are ambiguous.
Jackson’s dissent received partial support from Justice Sonia Sotomayor, though notably, Sotomayor abstained from joining the footnote where Jackson elaborated on these criticisms. The collegial but critical atmosphere among the justices was reflected in Jackson’s remarks on maintaining amiable relationships within the court despite divergent judicial philosophies, which she had previously discussed in an interview for the New Yorker Radio Hour.
Additionally, in Diamond Alternative Energy v. EPA, Jackson cautioned against the perception of bias when decisions seemingly favor those with greater economic clout, as the Court revived a lawsuit challenging the Environmental Protection Agency’s approval of California’s electric vehicle regulations. She pointed out inconsistencies in the application of standing criteria, questioning the assumption that nullifying certain regulations would unequivocally benefit traditional fuel producers.
Justice Brett Kavanaugh, writing for the majority in this case, asserted that the fuel producers had adequate standing, emphasizing the logical connection between the relief sought and the alleged injury. However, Jackson’s skepticism over the Court’s reliance on “intuition” rather than expansive evidence demonstrates her broader critique of perceived judicial flexibility in reasoning.