Conservative Supreme Court Justice Amy Coney Barrett surprised veteran court observers Friday with a sharp rebuke of liberal Justice Ketanji Brown Jackson’s “extreme” dissent in a landmark birthright citizenship case that limited the lower courts’ use of universal injunctions.
“We will not dwell on Justice Jackson’s argument, which conflicts with more than two centuries of precedent, not to mention the Constitution itself,” Barrett, the court’s second-newest justice, wrote in a striking critique of her colleague, the newest justice.
“We observe only this: Justice Jackson condemns an imperial Executive while embracing an imperial Judiciary.”
Barrett authored the majority opinion in the case—the most consequential on the Court’s docket this term—which delivered a major victory for former President Trump by restricting the power of district judges to block his actions.
Liberal Justice Sonia Sotomayor wrote the primary dissent representing the Court’s liberal wing, joined by Justice Jackson.
But Jackson also filed a partial dissent that focused less on legal theory and more on warning about the practical consequences of the 6–3 ruling.
“It is not difficult to predict how this all ends. Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more,” she warned in dramatic terms.
Elsewhere, Jackson emphasized the importance of legal accountability: “Quite unlike a rule-of-kings governing system, in a rule of law regime, nearly ‘[e]very act of government may be challenged by an appeal to law.’” She also criticized the majority for getting lost in the details of the government’s “self-serving, finger-pointing arguments,” saying it “misses the plot.”
Jackson’s partial dissent focused heavily on the practical consequences of the 6–3 decision rather than on legal theory.
Jackson went so far as to dismiss the question of whether the Judiciary Act of 1789 authorized universal injunctions as mere “legalese” that, in her view, “obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?”
Barrett’s response in her opinion was almost derisive: “Because analyzing the governing statute involves boring ‘legalese,’ [Jackson] seeks to answer ‘a far more basic question of enormous practical significance: May a federal court in the United States of America order the Executive to follow the law?’
“In other words, it is unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive. Justice Jackson would do well to heed her own admonition: ‘[E]veryone, from the President on down, is bound by law,’” Barrett added.
“That goes for judges too.”
While Barrett, 53, offered restrained praise to Sotomayor, 71, for keeping her dissent grounded in “conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity,” she sharply criticized Jackson, 54, for adopting “a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.”
“Waving away attention to the limits on judicial power as a ‘mind-numbingly technical query’ … she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush,” Barrett wrote.
Meanwhile, Jackson notably chose not to end her opinion with the usual “I dissent” or “respectfully, I dissent,” an apparent sign of her anger at the ruling.
“The FACT that six Justices were OK with signing onto an opinion where Justice Barrett took a personal shot at Justice Jackson is a VERY STRONG indication that Jackson has alienated her colleagues and that there is a growing lack of respect for her work,” wrote X user Shipwreckedcrew, who describes himself as a former federal prosecutor.
“Justices circulate memos sharing their legal views on certain cases to persuade others to their side. Given what she wrote in her dissent, imagine the memos Jackson must have sent around in this case.”
Three lower courts blocked Trump’s January 20 executive order narrowing the definition of birthright citizenship—which the 14th Amendment guarantees by granting automatic citizenship to anyone born in the United States—after determining the order was likely unconstitutional.
The Supreme Court, however, did not address the substance of Trump’s order and instead focused solely on whether courts had the authority to enjoin it.
