Sotomayor Had To Explain The Law To KBJ Like She Was A 5th Grader

Sotomayor Had To Explain The Law To KBJ Like She Was A 5th Grader

Justice Ketanji Brown Jackson was severely castigated and mocked by the 6-3 majority in the “birthright citizenship” (aka “universal injunction”) case for her Dissent which the normally staid Amy Coney Barrett (joined by five other Justices) termed “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.” No other Justice, not even Sotomayor or Kagan, joined in KJB’s dissent, which contained numerous KBJ-isms: I’ll meet your “(wait for it)” and raise you a “full stop”.

KJB is carving out as niche among liberals as the “Great Dissenter” – but her dissents are so shallow that in the recent case in which the majority (8-1) stayed a district court order halting the mere planning for layoffs, Sotomayor had to spell out for KBJ why her solo dissent was legally unsound (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.

KBJ was seeking to uphold an injunction against something that wasn’t even before the court.

I appeared on I’m Right with Jesse Kelly to talk about several aspects of Supreme Court action, including how Sotomayor treated KBJ like she was explaining the law to a 5th Grader. [Note – at one point I misspoke and referred to Kagan as having done that.]

Towards the end we also talked about the possibility of Justices Thomas or Alito retiring.

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

Kelly (00:05):

You know, it’s almost impossible to fire federal employees, or at least traditionally it has been. And it may sound like not a big deal, but it’s a gigantic deal. The people you elect, they’ll get into office and the federal workforce can oftentimes completely defy them. And you can’t fire these daggon people. They’re like leeches. Is that about to change? I don’t know. Supreme Court just decided something.

We better ask Bill Jacobson about that. Joining me now, founder of Legal Insurrection, Cornell University Law Professor Bill Jacobson. Okay, Bill, what is this decision? What does it mean?

WAJ (00:40):

So the Supreme Court granted a stay, which means put a hold on, an injunction from Federal District Court in California, which prevented the federal government from moving forward under a Trump executive order, which called on, I think it was 19 different departments, to develop plans for large scale layoffs. So the district court stopped them from even planning to do anything, which went up to the Ninth Circuit Court of Appeals, which refused to grant a stay pending appeal. They then took it up to the Supreme Court.

The Supreme Court, 8-1 with Ketanji Brown Jackson dissenting, in a fairly fiery dissent, and granted a stay. And there’s many reasons why they granted the stay, but what we can discern from the short opinion as well as the opinion of Justice Sotomayor, who agreed with them, is what is the court below doing? All the executive order says is start planning. The executive order didn’t lay anybody off. So a federal district court judge stopped them from even planning and therefore enjoined plans which didn’t even yet exist. And the Supreme Court said, no, we’re not going to allow that to happen, this lower court order is stayed. They can move forward with the planning.

Kelly (02:06):

Okay, so there aren’t going to be mass layoffs as of right now. All this said as you can start planning for mass layoffs, just to make sure I have that correct.

WAJ (02:16):

That’s right. And Ketanji Brown Jackson dissented from that…

Kelly (02:27):

You said it was a fiery descent. Why?

WAJ (02:31):

Because she used a lot of the sort of language she’s used before, very accusatory towards her colleagues, very accusatory towards the court at ignoring what she called the reality on the ground. I mean, she literally used a term, if I didn’t quote it precisely, it was very close to that. That the district court judge knows better what’s happening on the ground, which is of course just an absurd assertion. And she’s done that before, that the court is once again ignoring, you know, the rights of different citizens, et cetera. So it was just very accusatory towards the majority, towards the court.

And one thing that’s interesting is that it was also in a sense accusatory against the two other liberals because both Kagan and Sotomayor voted with the majority. And Kagan [correction – Sotomayor] wrote a separate decision, which clearly was directed towards Justice Jackson and said, look, basically you don’t seem to understand, we don’t even have a plan to rule on. All the executive order did is say they could create a plan. Once we have that plan, then we can rule on whether it’s lawful or not. Maybe it is, maybe it isn’t.

So she felt the need, you know, a lot of people use the expression, explain this to me like I’m a fifth grader. Okay? That’s what Justice Sotomayor did for Justice Jackson. She explained it to her like she was a fifth grader, in very simple terms that apparently Justice Jackson to the end was unable to grasp because she continued with her 10 page dissent, which really was not grounded in anything.

And this is what we’re seeing a lot from her. She gets very accusatory towards people who disagree with her. She gets very nasty towards them in her dissent. And we saw a couple of weeks ago, I think I discussed it on your show, how Amy Coney Barrett lashed out at her …. This was the so-called birthright citizenship case that, you know, all the things Justice Jackson is saying in her dissent are contrary to 200 years of constitutional law. And, and now Sotomayor had to say something similar, a little kinder, but basically it was, okay, Justice Jackson, I’m gonna explain this to you like you’re a fifth grader. Here’s why we need to grant the stay.

And so that’s what’s really astounding is that none of the other eight Justices, including two liberal Justices, really don’t seem to have a lot of respect for Justice Jackson.

***

Kelly (08:17):

All right. Shifting gears here. I love Alito. I love Thomas as anybody with a brain does, but father time is undefeated. Are there whispers about potential retirements? I’m not even saying I’m trying to shove ’em out the door because I love those men, but we don’t want a Democrat to replace them, and that’s always a possibility. What’s the rumor mill say?

WAJ (08:40):

I’m not sure if there are rumors, or thoughts, people are expecting that one or both of them will retire on a timing that would allow Trump to name a replacement that may not happen.

And the most famous case of it not happening is Ruth Bader Ginsburg, who hung on just a little bit too long and Trump got to name her replacement. And so that’s hanging over everybody. We don’t want Alito or Thomas to go Ginsburg here.

They’re both seemingly in good shape. They’re certainly in good mental shape, as was Ginsburg. There would be a real loss to the court to lose either one of them. But they have to be conscious that they don’t want some future Democrat president to name their replacement. They do not want the equivalent of a Justice Jackson to replace them, some social justice warrior. And those are the types of judges Biden has appointed to the lower courts. So it’s the expectation that they will retire, more so than the rumor that they’re making plans to retire.

Kelly (09:56):

Bill, as always, I appreciate you, sir. Come back.

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