Ketanji Brown Jackson is not holding back against Trump or her fellow justices

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — The vast Trump litigation, sure to define the Supreme Court over the next four years, has already exposed Justice Ketanji Brown Jackson’s resistance.

She speaks up, wields her pen as a dagger, and doesn’t care if she goes it alone.

In a case this week, she condemned the Trump administration’s efforts to “whisk people away to a notoriously brutal, foreign-run prison,” adding, “For lovers of liberty, this should be quite concerning.” A few days earlier, she derided the Department of Education’s “robotic rollout” of a policy cancelling teacher grants and its “highly questionable behavior.”

As she has skewered the Trump team, she has criticized the conservative Supreme Court majority that sides with it, referring this week to her colleagues’ “fly-by-night approach.”

Since her 2022 appointment by President Joe Biden, Jackson has intentionally laid down markers and asserted her independence. Of the three justices on the left wing, she is the most loquacious during oral arguments and the least likely to try to steer the give-and-take toward some middle-ground consensus. Rather than put her energies toward internal persuasion among colleagues, Jackson appears to be addressing audiences beyond the bench.

The court can sometimes seem impenetrable to the public, a mysterious place where the reasoning of opinions is opaque and justices indistinguishable. Many justices deliberately keep their cards close. Jackson, however, is going out of her way to define herself.

When the court majority on Monday night let the administration use the 18th-century Alien Enemies Act to deport Venezuelan nationals to El Salvador, Jackson took the extra step of writing her own dissent after signing one penned by senior liberal Justice Sonia Sotomayor and dramatically invoked one of the court’s most infamous episodes.

“At least when the Court went off base in the past, it left a record so posterity could see how it went wrong,” Jackson wrote, pointing to the notorious 1944 case of Korematsu v. United States, when the justices upheld the internment of Japanese Americans during World War II.

“With more and more of our most significant rulings taking place in the shadows of our emergency docket,” Jackson added, referring to the docket for requests that seek quick action on minimal filings, “today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.”

Patterns surrounding opinion-writing can reveal the internal dynamics among justices. After a vote on the case, the senior-most justice on each side decides who should write for the majority and, alternatively, who for the dissent. Individuals are free to write separately, but the convention – particularly for the majority – is unity and clarity, rather than splintered views.

For dissenters, a recurring question is how much they band together or strike out individually. When Justice Ruth Bader Ginsburg was the senior liberal justice, for 10 years until her death in 2020, she urged the then-four liberals to sign a single dissenting statement. She believed that would send a more forceful message to counter the minority.

Her mantra, as some colleagues saw it: I write. You sign.

When a justice feels compelled to break away, it tests whether another justice will offer solidarity.

Neither Sotomayor nor the two other dissenting justices in the dispute over the wartime law, Elena Kagan and Amy Coney Barrett, signed on to Jackson’s statement.

The liberals, alone

The current Supreme Court often divides along 6-3 conservative-liberal lines. Chief Justice John Roberts or Barrett sometimes casts a vote with the liberals, as has happened in various Trump cases.

But for the most part, the three justices on the left have only themselves.

Jackson, the first Black woman justice on the court, regularly signs on to the writings of the more senior justices Sotomayor and Kagan. But she is also keen to speak alone and often.

That happened last year when the six-justice conservative majority gave Trump substantial immunity from criminal prosecution for official acts.

Sotomayor wrote an impassioned 30-page dissenting opinion, declaring as she closed, “Moving forward … all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.”

Kagan and Jackson joined that statement. Kagan saw no need to write anything more. But Jackson penned 22 additional pages.

“I write separately to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States. I also address what that paradigm shift means for our Nation moving forward.”

The new Trump cases have produced more barbed rhetoric.

Last week, Jackson dissented as the majority reversed a lower court order blocking the Trump administration from cancelling teacher training grants, including those that fostered diversity.

“(I)t appears that the primary effect of today’s (action) is to hand the Government an early ‘win’ – a notch in its belt at the start of a legal battle in which the long-term prospects for its eventual success seem doubtful,” Jackson said.

Three other justices dissented, but only Sotomayor chose to sign on with Jackson.

Kagan wrote a shorter dissenting opinion focused on the expedited process that the conservative majority has undertaken to rule on Trump’s initiatives.

Roberts, who also disagreed with the majority’s order in the Department of Education case, joined none of the others, offering only one sentence that noted he would have denied the administration’s appeal.

Of the three liberals, Kagan is most tactical and willing to work toward common ground with conservatives, including on the Trump litigation. She picks her shots and rarely writes separate opinions.

She has separated herself from Jackson and Sotomayor in some Trump cases. Earlier this week, for example, when the court majority let the administration eliminate 16,000 probationary workers from the federal payroll, only Sotomayor and Jackson publicly dissented.

And Kagan, who can take her own fierce shots, has been cooling her rhetoric.

In the controversy over the administration’s cancelation of education grants, she tamely described the conservative majority’s reasoning as “at the least under-developed, and very possibly wrong.” She also acknowledged “good-faith disagreements” about when the court should move quickly on cases submitted to its emergency docket, foregoing a comprehensive briefing and time for a considered decision.

Jackson, on the other hand, called the court’s acceptance of the Trump plea for intervention “truly bizarre.”

“I worry that permitting the emergency docket to be hijacked in this way … ” she added, “damages our institutional credibility.”

The-CNN-Wire
™ & © 2025 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.