The last time we checked in on Supreme Court Justice Ketanji Brown Jackson, her fiery solo dissent (that even Sotomayor and Kagan didn’t join) in the ‘birthright citizenship’ (really, universal injunction) case had earned her much mockery and scorn, including from the six ‘conservative’ Justices, KBJ-isms: I’ll meet your “(wait for it)” and raise you a “full stop”.
KBJ is carving out a niche of solo dissents that play well in the liberal media, drawing her accolades:
Justice Ketanji Brown Jackson is emerging as the great dissenter in the tradition of John Marshall Harlan. Her opinions will be read long after Amy Coney Barrett is a mere footnote in history.
Sticking with her emerging persona as the Great Dissenter, KBJ penned another fiery solo in a case in which the eight other Justices granted the Trump administration a stay pending appeal halting a district court order preventing planning for mass layoffs. From the Majority Order [emphasis added]:
The application for stay presented to Justice Kagan and by her referred to the Court is granted. The May 22, 2025 preliminary injunction entered by the United States District Court for the Northern District of California, case No. 3:25–cv–3698, is stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.The District Court’s injunction was based on its view that Executive Order No. 14210, 90 Fed. Reg. 9669 (2025), and a joint memorandum from the Office of Management and Budget and Office of Personnel Management implementing that Executive Order are unlawful. Because the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful—and because the other factors bearing on whether to grant a stay are satisfied— we grant the application. We express no view on the legality of any Agency RIF and Reorganization Plan produced or approved pursuant to the Executive Order and Memorandum. The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order and Memorandum, not on any concurring assessment of the plans themselves. Those plans are not before this Court.
KBJ’s dissent was so over the top, that even Justice Sotomayor – who voted with the majority – felt the need to distance herself from it. The problem with KBJ’s dissent is that she didn’t understand (as the majority pointed out) that the court was not ruling on the merits of the firings, only whether planning could move forward. Sotomayor wrote this Concurring Opinion explaining all this [emphasis added]:
I agree with JUSTICE JACKSON that the President cannot restructure federal agencies in a manner inconsistent with congressional mandates. See post, at 13. Here, however, the relevant Executive Order directs agencies to plan reorganizations and reductions in force “consistent with applicable law,” App. to Application for Stay 2a, and the resulting joint memorandum from the Office of Management and Budget and Office of Personnel Management reiterates as much. The plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law. I join the Court’s stay because it leaves the District Court free to consider those questions in the first instance.
So both the majority and Sotomayor separately made that point to KBJ. But it didn’t get through, as her lengthy dissent repeatedly considered the merits of a layoff plan that was not even before the court:
This unilateral decision to “transfor[m]” the Federal Government was quickly challenged in federal court. As relevant here, the District Judge thoroughly examined the evidence, considered applicable law, and made a reasoned determination that Executive Branch officials should be enjoined from implementing the mandated restructuring until this legal challenge to the President’s authority to undertake such action could be litigated. But that temporary, practical, harm-reducing preservation of the status quo was no match for this Court’s demonstrated enthusiasm for greenlighting this President’s legally dubious actions in an emergency posture.The Court has now stayed the District Court’s preliminary injunction—authorizing implementation of Executive Order No. 14210, and all the harmful upheaval that edict entails, while the lower courts evaluate its lawfulness. In my view, this was the wrong decision at the wrong moment, especially given what little this Court knows about what is actually happening on the ground.
Tell us, KBJ, “what is actually happening on the ground”? How long before she starts talking about “lived experience”?
As the self-described ‘Wise Latina’ pointed out, all the court allowed the administration to do was develop plans. The district court prevented even planning, and ruled that the as-yet non-existent plans needed an emergency injunction.
Another KBJ-ism – district court judge have their “fingers on the pulse” of what is happening “on the ground” [emphasis added]:
Given the fact-based nature of the issue in this case and the many serious harms that result from allowing the President to dramatically reconfigure the Federal Government, it was eminently reasonable for the District Court to maintain the status quo while the courts evaluate the lawfulness of the President’s executive action. At bottom, this case is about whether that action amounts to a structural overhaul that usurps Congress’s policymaking prerogatives—and it is hard to imagine deciding that question in any meaningful way after those changes have happened. Yet, for some reason, this Court sees fit to step in now and release the President’s wrecking ball at the outset of this litigation.In my view, this decision is not only truly unfortunate but also hubristic and senseless. Lower court judges have their fingers on the pulse of what is happening on the ground and are indisputably best positioned to determine the relevant facts—including those that underlie fair assessments of the merits, harms, and equities.
What is KBJ up to? Does it trouble her that even Kagan and Sotomayor don’t join her dissents.
She’s not “the Great Dissenter,” she’s “the Solo Dissenter.”
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