Open any Supreme Court decision (here’s a good example), and you’ll see that, after a few pages of “Syllabus” (i.e., summary), you get to the meat, where the justices issue their ruling. And that ruling is invariably preceded by language identifying the justice who wrote the decision, followed by the words “delivered the opinion of the Court.”
The Supreme Court website helpfully explains at its “Opinions” page that the “most well-known opinions are those released or announced in cases in which the Court has heard oral argument.” In other words, those are the ones that analyze the Constitution, congressional statutes, pre-existing cases (precedent), and bureaucratic regulations. Other lesser-known “opinions” are a few types of quick orders. Judges may also issue concurrences or dissents in which they state their understanding of American law.
Stunningly, though, Justice Ketanji Brown Jackson has added a new type of opinion to this list: her own. That is, her personal, emotional reactions to the matters before the Court:
“I just feel that I have a wonderful opportunity to tell people in my opinions how I feel about the issues, and that's what I try to do,” Jackson said.
Thus saith the wannabe theater kid, who brings her personal values and emotionalism to her performance as a judge. But honestly, Jackson has done nothing more than speak the quiet part out loud.
Before becoming a political writer and editor, I spent thirty years working in litigation in the San Francisco Bay Area. At a guesstimate, the judges on the cases with which I was involved were probably 80% leftist. These leftist judges felt exactly as Jackson did: The cases weren’t about the law; they were about a judge’s opinions and feelings concerning the matter before them.
Most of these judges weren’t as blunt as Jackson, but it was the little things they said. There was the judge who, when foiled in a first attempt to cancel a defaulting borrower’s legitimate debt to a bank, announced, “Just remember that there’s more than one way to skin a cat.” During the trial, he attacked the bank’s attorneys so aggressively that it was a foregone conclusion that the jurors would find that the bank was evil, which they did.
And of course, sometimes, the judges were quite open about their disdain for the law. I swear that my journey from Democrat to conservative started when I had conclusively proven to the judge that California law completely foreclosed the plaintiff’s lawsuit against my client.
The judge, however, hemmed and hawed. He then ruled against my client, saying, “I know what the law is, but I still think there’s something there.” Feelings. Opinions. He was purely Jacksonian. In fact, there was nothing there, and, $1.2 million in fees and costs later, we had a huge victory at trial, which included an award for fees and costs. That same judge later ended up on the California Court of Appeals.
There’s an old saying that you first hear when you enter law school: “The law is what the judge had for breakfast.” In other words, it’s a myth that judges are objective. Instead, they know what outcome they want and then garb themselves in whatever cases, statutes, and regulations will lead to those outcomes.
To a certain extent, that’s true. However, I’d say that conservative judges come in with a bias about how the law must be understood in the first instance.
At the top of the heap is the Constitution. First, you look at the explicit language. If that answers the legal question, you stop there. If there’s any ambiguity, you look at the drafters’ intention. The same analysis applies to statutes. Finally, with case authority, if you have an outcome in mind, you hope there are existing cases supporting that outcome. That’s the breakfast.
Leftists, however, are different. Their starting point is the preferred outcome, and they work backward from that, finding tiny particles of meaning in whatever source they can, whether it’s the Constitution, statutes, regulations, case authority, throw-away lines in political speeches, or other countries’ constitutions, laws, and values.
Ruth Bader Ginsburg’s cases are often a sprawling mess of tiny disparate threads of facts, law, and minutiae, all intended to create an illusion of sound judicial reasoning. Even Ginsburg, though, never had the temerity to state outright that a pivotal part of any decision she reached was shaped, not by all the legal authority she could scrape up, but by her personal feelings and opinions.
But I’m preaching to the choir here. In the last five months, we’ve all seen exactly how leftist judges operate. It’s just that Jackson, floating high on her own supply, has admitted it out loud.
Our system works because people believe that justices strive for impartiality, and that their impartiality has its roots in everything that came before: The laws that the People’s elected representatives passed, the regulations that were subject to public review, and the wisdom of generations of judges, all of whom also strove for justice and impartiality. For Jackson to admit that, on the left, it’s all about navel-gazing is a startling statement and a hammer blow to the integrity of our judicial system.
Image created using ChatGPT.