Justice Jackson’s activist opinion does more damage to Supreme Court civility

“…It was, therefore, distressing to see Jackson picking up on the “No Kings” theme, warning about drifting toward “a rule-of-kings governing system”

She said that limiting the power of individual judges to freeze the entire federal government was “enabling our collective demise. At the very least, I lament that the majority is so caught up in minutiae of the Government’s self-serving, finger-pointing arguments that it misses the plot.”

The “minutiae” dismissed by Jackson happen to be the statutory and constitutional authority of federal courts. It is the minutiae that distinguish the rule of law from mere judicial impulse.

Justice Barrett clearly had had enough with the self-aggrandizing rhetoric. She delivered a haymaker in writing that “JUSTICE JACKSON would do well to heed her own admonition: “[E]veryone, from the President on down, is bound by law.” Ibid. That goes for judges too.”

She added, “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. We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.”

In other words, the danger to democracy is found in judges acting like kings. Barrett explained to her three liberal colleagues that “when a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”

The last term has laid bare some of the chilling jurisprudence of Justice Jackson. Untethered by statutory or constitutional text, it allows the courts to float free from the limits of Article III.

For many, that is not an escape into minutiae but madness without clear lines for judicial power…”