Observers of the US Supreme Court commonly refer to “conservative” versus “liberal” justices, i.e., Republican versus Democratic appointees. It’s a useful shorthand or analytical lens, 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 court’s emergency 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. 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 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 Sotomayor and Kagan voting with the majority. 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. 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% 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, Kagan also diverged from her fellow liberals. Her D.V.D. concurrence reflected her general practice of deciding each case on its own terms—as opposed to situating it as part of a larger project, whether by the Trump administration or the conservative supermajority, that must be resisted.
It also embodied what could be characterized as her very law-centric approach. In the words of Professor Stephen Vladeck of Georgetown Law, Kagan focuses “on the strongest legal objections” to the conservatives’ position, as opposed to “throwing the kitchen sink (including legal, political, and moral arguments) at the problem.”
Sotomayor landed in between 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% of the time—less often than Kagan, but more often than Jackson.
Voting against the administration in both D.V.D and AFGE, Jackson wound up as the most left-leaning of the liberals. In merits cases, she was in the majority only 72% of the time—the lowest of any of the nine justices.
Looking beyond their votes to their voices, Jackson employed the most impassioned rhetoric in her opinions from last term. As Professor Jonathan Adler of William & Mary Law School put it, “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, Sotomayor wrote a fairly traditional dissent, joined by Kagan and Jackson—while 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, 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, 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 Jackson, as the justice who has sided against the administration most often on the emergency docket, will likely retain that position when voting in the related merits cases.
In terms of her voice, I believe that Jackson will become the most full-throated liberal the court has seen in decades, the likes of which we haven’t seen since the days of Justices William Brennan and William Douglas. She’ll dissent more frequently and vociferously than the other Democratic appointees. Like Brennan and Douglas, she’ll take more of “a big-picture approach,” focused less on legal niceties and more on “history, civil rights, and real-world stakes” of rulings, as Adam Feldman wrote at Empirical SCOTUS.
As we’ve already seen in some of her work, Jackson will write opinions that are intended not just for lawyers and judges, but for the media and, ultimately, the American people. According to appellate litigator Brian Burgess, a partner at Goodwin and former Sotomayor clerk, “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.”
At an event last year at the Kennedy Center to discuss her memoir, 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.
David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”
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