KBJ Is Angry that Supreme Court Follows Something Called 'The Law'

The liberal wing of the court long ago adopted the Wilsonian view of the Constitution: it is outdated and needs constant revision by the wise men and women who know much better than the Founders or the legislators who wrote the supreme law of the land and the various laws by which the country is governed. 

Justice Ketanji Brown Jackson unloaded on her Supreme Court colleagues Friday in a series of sharp dissents, castigating what she called a "pure textualism" approach to interpreting laws, which she said had become a pretext for securing their desired outcomes, and implying the conservative justices have strayed from their oath by showing favoritism to "moneyed interests."

The attack on the court's conservative majority by the junior justice and member of the liberal wing is notably pointed and aggressive but stopped short of getting personal. It laid bare the stark divisions on the court and pent-up frustration in the minority over what Jackson described as inconsistent and unfair application of precedent by those in power.

Jackson took particular aim at Justice Neil Gorsuch's majority opinion in a case brought by a retired Florida firefighter with Parkinson's disease who had tried to sue under the Americans with Disabilities Act after her former employer, the City of Sanford, canceled extended health insurance coverage for retirees who left the force before serving 25 years because of a disability.

Gorsuch wrote that the landmark law only protects "qualified individuals" and that retirees don't count. The ADA defines the qualified class as those who "can perform the essential functions of the employment position that such individual holds or desires."

"This court has long recognized that the textual limitations upon a law's scope must be understood as no less a part of its purpose than its substantive authorizations," Gorsuch concluded in his opinion in Stanley v. City of Sanford. It was joined by all the court's conservatives and liberal Justice Elena Kagan.

Jackson fired back, accusing her colleagues of reaching a "stingy outcome" and willfully ignoring the "clear design of the ADA to render a ruling that plainly counteracts what Congress meant to -- and did -- accomplish" with the law. She said they had "run in a series of textualist circles" and that the majority "closes its eyes to context, enactment history and the legislature's goals."

"I cannot abide that narrow-minded approach," she wrote.

Jackson's reference to "textualist circles" is the tell. References to intent are not unknown in Constitutional and legal interpretations, of course, but activists have used "intent" to mean "my preferences" more often than not. A legitimate use of "intent" to clarify the meaning of a law makes reference to contemporaneous writings and debates within legislatures, or reference to the arguments in the Federalist Papers, not nebulous mind-readings done by judges. 

The latter leads to reinterpretations of laws where the manifest intent of the legislators or the Founders is reversed, as we have seen time and again with civil rights laws. Color blindness suddenly becomes racial preference, for instance, or new rights are found in the "penumbra" of the Constitution. 

Saying the majority has a "unfortunate misunderstanding of the judicial role," Jackson said her colleagues' "refusal" to consider Congress' intent behind the ADA "turns the interpretative task into a potent weapon for advancing judicial policy preferences."

"By 'finding' answers in ambiguous text," she wrote, "and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences."

Justice Sonia Sotomayor, who joined parts of Jackson's dissent, explicitly did not sign-on to the footnote.

Justice Elena Kagan, a member of the liberal wing, joined the conservative majority in all three cases in which Jackson dissented, but she did not explain her views. In 2015, Kagan famously said, "we're all textualists now" of the court, but years later disavowed that approach over alleged abuse by conservative jurists.

Differing interpretations of texts are not uncommon, and within reason, there are legitimate disputes about what exactly a law's text actually means. But explicitly rejecting the idea that the text matters less than the feelz is as clear an expression of Critical Legal Theory as you can get. 

The law says what I want it to. 

In this particular case, it's not at all clear what the conservative justices' policy preferences would be, and it is highly unlikely--as KBJ suggests--that Kagan simply wanted to cut off medical insurance from a person suffering from Parkinson's. It's just that the law says that is the correct decision. 

It is up to the legislature to decide this policy question. That shouldn't be a difficult argument to make because it is the essence of our legal system. 

KBJ wants to replace our Republican principles with her own version of government.