In the Supreme Court's recent decision in Trump v. CASA, Justice Ketanji Brown Jackson penned a dissent so radical in its vision of judicial power that it prompted Justice Amy Coney Barrett to deliver one of the sharpest rebukes in recent memory.
Barrett accused Jackson of "embracing an imperial Judiciary" while "decrying an imperial Executive." This wasn't mere rhetorical flourish—it was a necessary warning about a judicial philosophy that threatens the very foundation of American constitutional government.
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Jackson's dissent reveals an incredibly problematic approach to legal reasoning that places emotional appeals above established precedent and constitutional structure. Rather than engaging seriously with centuries of equity jurisprudence and the clear text of the Judiciary Act of 1789, Jackson dismisses these constraints as a "smokescreen" obscuring what she sees as a more fundamental question about judicial power.
This represents a dangerous departure from how American law actually works. Our legal system is built on precedent, not just when courts choose to uphold it, but when they carefully explain why historical practice must be updated or discarded. Jackson's approach bypasses this methodical process entirely, favoring instead what she calls the "enormous legal and practical significance" of ordering the Executive to follow the law universally.
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The problem isn't Jackson's goal—ensuring executive compliance with law—but her willingness to ignore legal constraints to achieve it. When justices start treating precedent as merely advisory and constitutional text as infinitely malleable, they create the conditions for erratic, inconsistent decisions that respond only to the political pressures of the moment. Today's "existential threat" becomes tomorrow's forgotten crisis, but the judicial precedent remains to wreak havoc on future cases.
Jackson's historical analysis is equally problematic. She argues that American courts shouldn't be bound by English equity practices because "the Founders rejected a governing system in which the King ruled all." This conflates the English judicial system with the English monarchy, which were two distinct institutions that the Founders carefully separated in their thinking.
If the Founders truly wanted to reject English legal traditions entirely, why didn't they create a completely new legal system? Instead, they built upon English common law principles, equity practices, and judicial procedures while rejecting political subjugation to the Crown. The American Revolution was fought for the rights of Englishmen, not against English legal traditions, because the Founders believed they deserved the same rights as English citizens while rejecting colonial political control.
Jackson's selective use of history, embracing founding principles when they support expanded judicial power while dismissing them when they impose constraints, reveals an approach to constitutional interpretation that treats history as a cafeteria line rather than a binding inheritance.
Perhaps most troubling is Jackson's vision of judicial supremacy over coordinate branches of government. While she pays lip service to the separation of powers, her dissent effectively argues that federal judges have not just the authority but the duty to override executive decisions they deem unlawful, regardless of jurisdictional limits or statutory constraints.
This fundamentally misunderstands the Constitution's structure. The Founders deliberately ordered the Constitution with Article I (Congress) first, Article II (Executive) second, and Article III (Judiciary) third. This wasn't alphabetical convenience—it reflected their understanding of institutional priorities and powers. Even accepting the modern notion of "co-equal" branches, Jackson's position explicitly rejects co-equality in favor of judicial dominance.
Jackson envisions district judges wielding more power than the Chief Executive of the United States, able to halt national policies with a single ruling. Imagine if the ideological roles were reversed: Would Jackson argue that a conservative district judge should have the power to override a Democratic president's policies nationwide? The answer reveals the unprincipled nature of her position.
Jackson frames her dissent as defending the rule of law against executive tyranny. In reality, her position poses the greater threat to constitutional governance. When judges ignore statutory limits on their authority, as Jackson advocates regarding the Judiciary Act, they undermine the legal foundations that constrain all government power.
Barrett correctly identifies this inversion: "JUSTICE JACKSON would do well to heed her own admonition: '[E]veryone, from the President on down, is bound by law.' That goes for judges too."
The rule of law requires all branches to respect constitutional and statutory limits, not just the branches Jackson finds politically problematic.
Jackson's hypothetical about political opponents being imprisoned without due process reveals the emotional reasoning behind her legal analysis. Yes, such scenarios are concerning, which is why the Constitution provides multiple mechanisms for relief: habeas corpus, due process protections, appellate review, class action suits, and congressional oversight. Jackson doesn't want these measured protections; she wants immediate, unlimited judicial supremacy.
Critics of Barrett's position argue that the system would be too slow to stop tyranny or provide relief from bad policies. But this criticism misses the point: the system is deliberately slow. The Founders designed a government built on deliberation precisely because they feared decisions made in passionate moments.
Jackson's philosophy is fundamentally short-sighted, prioritizing immediate judicial intervention over the long-term stability that comes from respecting institutional boundaries. When courts exceed their authority to address today's crisis, they create precedents that will be exploited in tomorrow's different crisis by different actors with different agendas.
The clash between Barrett and Jackson in Trump v. CASA represents more than a disagreement about universal injunctions. It reflects two competing visions of American government: one that respects constitutional limits even when they produce frustrating results, and another that treats constitutional constraints as obstacles to be overcome in pursuit of preferred outcomes.
Barrett's approach—grounding judicial authority in historical practice and statutory text—may be less emotionally satisfying than Jackson's call for unlimited judicial intervention. But it's precisely this constitutional humility that preserves the rule of law for future generations.
When Justice Jackson advocates for an "imperial Judiciary" in the name of preventing an "imperial Executive," she reveals a judicial philosophy that threatens the very constitutional order she claims to defend. Barrett's sharp rebuke wasn't just warranted—it was essential to preserving the delicate balance of powers that makes American democracy possible.
The rule of law isn't threatened by judges who respect their constitutional limits. It's threatened by judges who think they have none.