No, Justice Jackson, the federal judiciary does not, in fact, have ‘the singular function of ensuring compliance with the Constitution.’

Justice Ketanji Brown Jackson is receiving some ridicule for this passage in her dissent in the universal-injunctions case:

A Martian arriving here from another planet would see these circumstances and surely wonder: “what good is the Constitution, then?” What, really, is this system for protecting people’s rights if it amounts to this—placing the onus on the victims to invoke the law’s protection, and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to prevent the Government from violating it? “Those things Americans call constitutional rights seem hardly worth the paper they are written on!”

This is distractingly bad writing. Did our Martian have to skip over to Venus to make a connection? The more important point, though, is that the federal judiciary does not, in fact, have “the singular function of ensuring compliance with the Constitution.” The federal courts have many functions other than ensuring compliance with the Constitution. And many institutions other than the federal courts have the function of ensuring compliance with the Constitution: e.g., legislatures, the press, and election administrations.

For that matter, the courts’ function of ensuring compliance with the Constitution arises from its more basic function of hearing and deciding cases: It doesn’t have a roving commission to enforce the Constitution without reference to those particular cases. Notre Dame Law School professor Samuel Bray made the point well in an op-ed defending the majority: “The courts must defend constitutional rights and liberties. But they must defend them as courts defend them: deciding cases for the parties and giving remedies to the parties.”

What Justice Jackson is offering, as Justice Amy Coney Barrett writes for the majority, is “a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush.” But it’s even worse than that. Justice Jackson opens her dissent by conjuring “an existential threat to the rule of law.” But she is simply taking the rule of law to mean judicial supremacy, and reasoning from that faulty premise to her conclusion in the case.

Justices Elena Kagan and Sonia Sotomayor have done many foolish things on the Supreme Court, in my view, and I think the majority has the better of the argument than their dissent. But it’s to their credit that they didn’t endorse Jackson’s opinion.