When you use skin color and chromosomes as criteria for filling positions of trust, as opposed to filling those positions with the best people regardless of skin color or chromosomes, you will not, unless by accident, get the best people for the job.
No public figure in recent memory exemplifies this maxim more than Supreme Court Justice Ketanji Brown Jackson. But that does not even tell half of the story.
According to The New York Times, Jackson has found herself increasingly at odds not only with SCOTUS’ nominally conservative majority, but also with her fellow liberals, Justices Elena Kagan and Sonia Sotomayor.
“Badly outnumbered, seated for the long haul of life tenure, Justices Kagan and Jackson in particular are divided on the best approach to jobs in which they are more or less sentenced to fail,” the Times wrote.
Meanwhile, the outlet also noted “friction” between Jackson on one hand and Kagan and Sotomayor on the other.
In short, the senior liberal justices, particularly Kagan, prefer subtlety and diplomacy in dealing with their more conservative colleagues. Kagan knows, for instance, that she needs SCOTUS’ two swing votes, Chief Justice John Roberts and Justice Amy Coney Barrett.
Jackson’s abrasiveness, on the other hand, appears to have threatened Kagan and Sotomayor’s burgeoning relationship with Barrett.
“As Justice Jackson settled in, Justice Sotomayor and Justice Kagan were drawing closer to one another, according to numerous people who know them both, and also forming ties with Justice Barrett, whose vote they desperately needed,” the Times wrote.
Indeed, the two senior liberals grew frustrated with their junior partner even before President Donald Trump won re-election.
Is Ketanji Brown Jackson the worst Supreme Court pick in modern history?
“By the summer of 2024, two years into Justice Jackson’s tenure, Justices Sotomayor and Kagan had grown worried that their newer colleague’s candor and propensity to add her own dissents were diluting the group’s impact, according to their confidantes,” according to the Times.
Shockingly, Kagan has even begun to vote with her conservative colleagues more often than she has in the past.
All told, the Times’ story rates as one of the more fascinating reports in recent memory.
Indeed, one may draw from that report no fewer than four important conclusions, two of them rather obvious.
Let us begin with the two obvious conclusions.
First, before nominating Jackson for SCOTUS, former President Joe Biden indicated that he wanted to appoint a black woman. That is the definition of a DEI hire. Had Biden declared that he wanted to find the best jurist, and had he then discovered that the best jurist happened to be a black woman, no one would have complained about the selection.
Second — and quite obviously related — Jackson has proven herself a ghastly choice. She has, for instance, shown disdain for something as fundamental to our liberty as the First Amendment.
All of this, of course, we knew long before the Times published its report. Jackson’s behavior, however, and the two other liberals’ reported frustration with her, have confirmed the obvious.
Meanwhile, the two less obvious conclusions spring from the nature of the report itself.
First, the report exists for the sole purpose of distorting the Constitution and undermining Trump. This being the Times and all, the report had the obligatory undertone: Trump is dangerous!
“All three see Mr. Trump as a threat to the constitutional order, yet no approach — diplomacy or confrontation — has persuaded the conservative center of the court to regard him that way,” the Times wrote.
Nothing, however, threatens the constitutional order more than an all-powerful judiciary. Trump won the election. None of the justices can say the same. Yet the Constitution assigns them equal power. It does not authorize SCOTUS to interpret the Constitution’s meaning in a way that binds the other two branches. And it certainly does not authorize district courts to issue nationwide injunctions.
This summer, the question of nationwide injunctions brought Barrett and Jackson into direct conflict.
“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” Barrett wrote in a 6-3 opinion that denied lower courts’ power to issue said injunctions while condemning Jackson’s dissent. “We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
(Even Sotomayor exposed flaws in Jackson’s logic in a later 8-1 ruling in favor of the Trump administration.)
Thus, notwithstanding the Times’ report, the liberal minority and its “imperial Judiciary” pose the real threat to the constitutional order.
Second — and far more subtle — the Times report is damning for Jackson.
Imagine: “more than a dozen associates of the justices, including both liberals and conservatives,” spoke to the Times “on condition of anonymity, in order to share sensitive details about closely held conversations.”
Does anyone believe that liberal associates would have spoken to the Times unless the liberal justices authorized as much?
In that context, the Times report amounts to a message to the junior liberal justice: Stop gumming up the works.
In short, from a conservative perspective, one may hope that liberal justices keep talking to one another through the Times. Their disarray can only mean the country’s advantage.
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