The Supreme Court liberals’ differing approaches
Like many others on the left in the Trump era, the liberal Supreme Court justices “are in a generational and philosophical struggle over whether to safeguard institutions from within or protest their decline,” reports The New York Times.
“But unlike politicians, they are doing so in a sealed world so tradition-bound and decorous that closing an opinion ‘I dissent’ instead of ‘I respectfully dissent’ is considered a dramatic statement,” the Times says.
Since Justice Ketanji Brown Jackson joined the court in 2022, friction has been increasing: between her and Justices Elena Kagan and Sonia Sotomayor, who are more aligned strategically, and between her and the rest of the court, according to more than a dozen associates of the justices, both liberals and conservatives.
Even on a 6-to-3 court, the liberals can sometimes strategize their way to narrower rulings, smaller losses or even outright victory, the Times notes. To do so, the liberals generally must sway Chief Justice John Roberts and Justice Amy Coney Barrett.
Admirers of Kagan say she’s prudent to show restraint, displaying her frustration only in flashes.
In contrast, Jackson is aiming for an audience beyond the court, speaking to the public and history, The Times says.
Advocates of Kagan’s approach say Jackson’s outspokenness could put liberals’ ability to shape outcomes at risk or further erode faith in a court that may yet stand up to President Trump.
Jackson’s advocates say Kagan is at risk of missing the moment and lending cover to a court that’s weakening democratic norms.
The two more senior liberals tried to advise and coordinate with Jackson, people close to all three jurists have told the Times. The new justice sometimes softened or withdrew opinions. But she also felt compelled to express frank disagreement — even if it caused friction, the Times says.
After the majority last year awarded broad immunity from prosecution to presidents, Sotomayor expressed “fear for our democracy.” Jackson went further, writing separately that the ruling was a “five-alarm fire that threatens to consume democratic self-governance.”
“It’s sort of like war,” says Daniel Epps, a law professor at Washington University. “If you’re outgunned, do you try diplomacy or even appeasement, or do you make a noble charge and possibly get blown away?”
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