Justice Ketanji Brown Jackson’s dissents in recent Supreme Court cases have become a focal point for discussions around the liberal approach to justice in an increasingly conservative court. Unlike her fellow liberal Justices Elena Kagan and Sonia Sotomayor, Jackson has embraced what many see as a more confrontational and public-facing style in her dissents, a tactic scrutinized in a New York Times report by Jodi Kantor. This report details the divisions among the Court’s liberal justices, emphasizing Jackson’s strategic but sharp critiques.
Jackson’s approach transcends mere disagreements with majority opinions. Influenced by the demosprudential understanding of dissent articulated by civil rights lawyer Lani Guinier, Jackson uses her dissents as instruments of democratic engagement. According to Guinier, dissents can serve not only to challenge majority rulings but also to educate and mobilize the public, highlighting what is at stake in judicial decisions. For example, in her dissent to the Supreme Court’s ruling against the University of North Carolina’s affirmative action program, Jackson accused the court of exhibiting a “let-them-eat-cake obliviousness” towards racial inequality (more on this case).
Kantor’s investigation reveals that Jackson’s dissents are not just focused on opposing her conservative colleagues but are a conscious effort to voice her apprehensions directly to the public. Her dissenting opinions often name threats she perceives, hoping that civic actors outside the judicial system will take notice and respond accordingly. In a climate where President Donald Trump is seen by the liberal justices as a “threat to the constitutional order,” as expressed in their private deliberations, Jackson’s public dissent underscores the urgency she feels in the need for a response.
While some liberal court-watchers are concerned that Jackson’s rhetoric may alienate potential allies like Chief Justice John Roberts or Justice Amy Coney Barrett, Jackson is unfazed by such warnings. Her public remarks reinforce her dedication to speaking out, declaring her readiness to use her voice however necessary, even if it risks disturbing collegial relations within the court.
This divergence among the liberal justices is not merely about tone; it reflects a deeper strategic divide. Is the role of a liberal justice within a conservative majority better served by attempting collaboration or by issuing stark warnings to the nation? If Guinier’s demosprudential approach is applied, the effectiveness of Jackson’s dissents may lie not in their influence within the court but in their ability to inspire democratic action outside of it. As such, Justice Jackson’s method might be what this moment in legal history necessitates, aiming to alert and galvanize the broader public regardless of the internal dynamics of the Court. For a more detailed examination, see the ongoing series Civil Rights and Wrongs by Daniel Harawa.