KBJ Angry Dissent After Unable to Convert Any Other Justice To Her Side in Conversion Therapy Case

KBJ Angry Dissent After Unable to Convert Any Other Justice To Her Side in Conversion Therapy Case

I appeared on The Tony Katz Show to discuss the Supreme Court 8-1 Conversion Therapy ruling and particularly the blistering 35-page solo dissent by Ketanji Brown Jackson in which she lashed out at the majority, calling their decision “unprincipled.”

Here’s the write up at Tony’s website:

The Supreme Court’s recent decision on Colorado’s conversion therapy ban has left many wondering about the implications for free speech and the role of the judiciary. Tony Katz is joined by William Jacobson, a Cornell Law professor and the mind behind LegalInsurrection.com, to break down the case and its significance.

The Supreme Court’s eight-to-one decision, with Justice Ketanji Brown Jackson dissenting, has sparked heated debate about the limits of government power and the protection of individual rights. As William Jacobson explains, “This was a case in which Colorado passed the law banning broadly speaking, conversion therapy. The only part of that that’s before the court is whether that conversion therapy can be banned if it’s merely words, if it’s merely talking.” The court made it clear that if the law involved physical conduct, such as abduction or medication, it might be upheld, but the issue at hand was the prohibition on therapists expressing a particular viewpoint.

The case raises important questions about the balance between government regulation and individual freedom of speech. As Jacobson notes, “This was meant not to cure physical abuses or medical abuses. It was meant to regulate viewpoints. You can talk about it with them, but you can’t hold a certain viewpoint.” The court’s decision highlights the tension between the government’s desire to protect its citizens and the need to safeguard individual rights and freedoms.

One of the most striking aspects of the case is Justice Brown Jackson’s dissent, which has been widely criticized for its tone and content. Jacobson describes it as “vindictive” and “petty,” with Brown Jackson attacking her colleagues in a way that’s “embarrassing” and “unusual.” As Jacobson puts it, “She’s I saw somebody refer to it on Twitter, so it’s not my original idea, but basically what she’s done is she has turned her dissenting opinions into the equivalent of blog posts that it’s you know, opinionated and attacking people.”

The implications of this case go beyond the specifics of conversion therapy. As Jacobson notes, “When Brown Jackson approaches it, she seems to find the political result that she wants, and that’s why it seems to be inconsistent.” The case highlights the challenges of navigating complex issues and the importance of considering multiple perspectives. As we explore the intricacies of this case and its broader implications, we’re joined by William Jacobson, a leading expert on the Supreme Court and its decisions.

If you’re interested in understanding the Supreme Court’s recent decision on Colorado’s conversion therapy ban and its significance for free speech and individual rights, this episode is a must-listen. Join us as we delve into the details of the case and its implications with William Jacobson, Cornell Law professor and the mind behind Legal Insurrection dot com. Listen to the full episode to gain a deeper understanding of this complex issue and its far-reaching consequences.

Listen to the “Justice Ketanji Brown Jackson Is Not Good At Her Job” discussion in full here:

(Partial Transcript – auto-generated, may contain transcription errors, lightly edited for transcript clarity)

Katz (00:00):

This was an 8-1 decision saying that the Colorado law was simply not able to stand, unconstitutional. Walk us through this case and your takes on it.

WAJ (00:10):

This is a case in which Colorado passed a law banning, broadly speaking, conversion therapy. The only part of that that’s before the court is whether that conversion therapy can be banned if it’s merely words, if it’s merely talking. The court was very clear. If it were something else they could ban it, you know, abducting somebody for conversion therapy or giving them medication or giving them physical things. But that’s not what is at stake here.

This literally prohibited a therapist from doing anything other than affirming this new transgender identity. Could not talk about it in any way contrary. So it was a viewpoint discrimination.

You could talk to your transgender, your confused client, but you can’t say this, and that’s the problem. And that this you can’t say is maybe you’re not really a woman, or maybe you’re not really a man. Let’s talk about it. How did you get to that conclusion?

That talk, that viewpoint was barred by the statute, and that’s what came before the court. No other conversion therapy issues were before the court.

Katz (01:32):

So this was really, if I’m the layman outsider looking in, discussing this, this becomes a First Amendment conversation where the state is saying to a therapist, oh, sure, you might be licensed and credentialed, and all the things that we usually tout and glorify and exalt, but in this case, we don’t want you saying this thing because it goes against our political point of view. That was, that’s where we’re at.

WAJ (02:00):

That’s right. They did not prohibit talking about the subject, but they prohibited having a particular viewpoint on the subject. And that was the whole point of the court, that this was pure close to pure viewpoint discrimination, which violates the First amendment.

And it’s very significant here, before we get to Ketanji Brown Jackson, this was an 8-1 decision. Okay. Even Kagan and Sotomayor went with the majority, and Kagan wrote a concurring opinion in which she agreed with the majority, that this was pure viewpoint discrimination. And she tried to make the distinction, which the court also did, is that if it were something other than just talking and expressing a viewpoint, she might come out differently. So if it involved physical conduct as part of conversion therapy, she might view it differently.

So you know when even Kagan and Sotomayor refused to go along with Ketanji Brown Jackson, that she is way out on the limb there.

And this is what we are seeing in multiple cases, not in all cases. I’d say in most cases they probably vote the same way. But there have been several cases where Ketanji Brown Jackson is just way out on a limb and actually very derisive of her colleagues. She called the majority in her dissent, in this case, she called the majority decision unprincipled.

She’s very vicious in the way she attacks her colleagues on the court, which is not the way it normally goes. Normally there’s a sense of collegiality, but she goes right after them. And we’ve seen that time and again in very demeaning terms, calling the majority unprincipled, and essentially saying, because you don’t agree with my viewpoint on conversion or on gender identity, you are unprincipled.

And it’s really terrible what she’s doing. She’s, I saw somebody refer to it on Twitter, so it’s not my original idea. But basically what she’s done is she has turned her dissenting opinions into the equivalent of blog posts, it’s that opinionated and attacking people. And in you would expect a lot of what she says to appear on TikTok or X or Instagram. It’s really embarrassing.

Katz (04:40):

If I was gonna say it another way, this is the kind of thing you expect a couple suburban housewives drinking white wine out of a box to be moaning and kvetching about. Talking to William Jacobson Cornell Law professor, the mind behind legal insurrection.com.

Dig in just a, a little bit on there. Because you brought it up and I do want to follow that train of thought. Her dissent, Justice Brown Jackson’s dissents seem personal. They do seem a lot of ways petty as someone,noted that in this dissent. You talk about vindictive, she kind of argues that Kagan and Sotomayor have been duped into thinking that the First Amendment says what it says and doesn’t say what it doesn’t say. Is there a take on how the court usually views those who engage the personal as opposed to you talk about collegiality, I’ll call it the professionalism.

WAJ (05:40):

I don’t know what the Justices individual views are, but certainly the sort of attacks on colleagues that Brown Jackson has engaged in repeatedly, including in this decision, is unusual. Certainly there are times when little barbs are thrown at the other side, but she calls them names.

This is really bad stuff, and I think she’s calling them names out of frustration. When you cannot even get Kagan and Sotomayor to agree with you, there’s a frustration. And she comes across as being extremely frustrated and lashing out because she can’t convince the other Justices to go along with her. And in this case, she couldn’t convince any of the other eight justices, even the two liberal Justices, to go along with her.

Her dissents have an air to them of lashing out of anger, of vindictiveness, of demeaning her colleagues. And I don’t really know what’s going on there. I can’t judge the interpersonal relationships, but I do think it’s fair to say that Brown Jackson’s dissents have gone off the rails

Katz (06:54):

And it should be clear that Kagan responded to the dissent, and the response is basically the same one we saw from Amy Coney Barrett, a few months back that we discussed. I can’t remember the case right now. We discussed it where Justice Kagan, who is one of the more interesting members of the court, because she usually does side with the left, but sometimes she can surprise, her argument is Justice Brown Jackson, you might not understand what this case is actually about.

WAJ (07:20):

<laugh>. This is what’s remarkable. And I remember talking to you, I think it was a Stotomayor concurring opinion. [WAJ Note – here it is, Sotomayor Had To Explain The Law To KBJ Like She Was A 5th Grader] Yes. In another case, I don’t even remember what the case was, but she basically said, hey, Brown Jackson, you don’t even understand what this case is about.

And that’s what we’re seeing here, the Justices, the eight of them, and not just the so-called conservative justices. In many ways, the conservative justices tend to ignore Brown Jackson. They tend to not treat her as being serious, at least in their opinions. They don’t give her the time of day to respond. But it’s interesting that Sotomayor and now Kagan do feel the need because I think she’s embarrassing their liberal wing of the court.

Katz (08:04):

…. What does this say to you about other cases that may be coming before the court or for the First Amendment protections in general?

WAJ (09:18):

Well, when Brown Jackson approaches it, she seems to find the political result that she wants. And that’s why it seems to be inconsistent…. She determines the political results she wants, and then finds a way to get there. And that creates the inconsistency. And here I think that’s more clear than anywhere. You’re right.

In other cases, she may want to scale back the police power of the state. But in this one, very close to the start of her dissent, she talks about how this medical care, this licensed medical care, somebody who has a license from the state, is subject to the police power of the state. And again, if this were involved physical sort of conversion therapy, if this involved medication or something like that, I think the entirety of the court probably would’ve upheld the statute. But that’s not what the statute does.

The statute says you cannot hold a particular viewpoint in your conversations with your therapy patient. You cannot express a particular viewpoint. And that’s the problem here. This was meant not to cure physical abuses or medical abuses. It was meant to, regulate viewpoints. You can talk about it with them, but you can’t hold a certain viewpoint. And I think that that is really the problem here. And she fails to grasp that. She completely misses that point in her dissent,

Katz (10:54):

Which I think leads people down the road of whether or not this is purposeful. What is it that we have done here? And I, you know, I’m one of the believers, and maybe because I’m the only believer, you know, sometimes, you know, the old from some murder kind of movie, the calls coming from inside the house. <laugh> I think the Justices would be very happy to see Congress move on some level of impeachment and removal of Ketanji Brown Jackson. You could tell me, no.

WAJ (11:24):

It’s never going to happen. It’s never going to happen. You know, I like to harken back to Donald Trump’s line, that he could shoot somebody in the middle of Fifth Avenue and his supporters would still be behind him. She could write the most disgusting, ridiculous, embarrassing dissents for the rest of her life, and she may have to, and there is no way Democrats are going to ever allow her to be removed.

Katz (11:53):

William Jacobson, Cornell law professor, at legalinsurrection.com, I appreciate you being with us More to get to. This is Tony Katz today.

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