Explosive Supreme Court LEAK reveals stinging whispers about ‘belligerent’ justice… read the wild rants troubling both sides of the aisle

Standing before a cheering audience on the sunny South Lawn of the White House, flanked by Vice President Kamala Harris and the newest Supreme Court justice, Ketanji Brown Jackson, President Biden said the quiet part out loud.

It was April 8, 2022, the day after the Senate had voted, largely along party lines, to confirm Jackson as the first Black woman to serve on the Court.

‘Yesterday, we all witnessed a truly historic moment,’ Mr. Biden said, giving away the game with his next sentence: ‘There are moments, if people go back in history, and they’re literally historic, consequential, fundamental shifts in American policy.’

Judges in the American system, of course, do not make policy. But since the 1960s, when Joe Biden graduated law school by the skin of teeth, the progressive movement has viewed the courts as the primary vehicle for social change.

And before Justice Jackson had completed her first day in her new position, the president who put her there made clear what was expected of her.

Testifying before the Senate Judiciary Committee that March, Jackson, then a Court of Appeals judge, denied any desire to graft her views onto the law.

‘I do not believe that there is a Living Constitution in the sense that it’s changing and it’s infused with my own policy perspective or, you know, the policy perspective of the day,’ she testified. ‘Instead, the Supreme Court has made clear that when you’re interpreting the Constitution, you’re looking at the text at the time of the Founding and what the meaning was then…I apply that constraint.’

Republican senators expressed doubt Jackson would honor that pledge on to the Court – concerns since validated.

As a justice, no longer seeing text as a constraint, Jackson has reverted to Living Constitutionalism. Indeed, she told the Essence Festival of Culture in New Orleans last summer: ‘I just feel that I have a wonderful opportunity to tell people in my opinions how I feel about the issues.’

Opinions handed down from the federal bench, of course, are not fora for judges to express how they ‘feel about the issues’; they are binding instruments by which the courts, interpreting existing law, adjudicate live disputes.

This approach has thrust the junior justice into conflict not just with the Court’s six conservative justices – originalists, in varying measures, who believe that laws should be interpreted according to their original meaning, best gleaned from their text – but also with Justices Sonia Sotomayor and Elena Kagan, the Obama appointees who are said to chafe at Jackson’s outspokenness.

Conservative Court insiders, who opposed Jackson’s nomination, tell me the justice’s belligerence has grown alongside the disappointment of an activist who has discovered she cannot do what President Biden wanted: make policy.

‘She’s pissing off everyone,’ said Mike Davis, former chief counsel to the Senate Judiciary Committee for nominations, now head of the Article III Project, an advocacy group that helped secure confirmation of President Trump’s three Court nominees. ‘The six Republican-appointed justices are sticking together as much as they are because of her. She is having the opposite effect of what the Democrats intended.’

Evidence of the strain has been surfacing over the last year. ‘Ever since Justice Jackson arrived,’ the New York Times reported last October, ‘friction has been building: between her and Justices Sotomayor and Kagan, who are more aligned strategically, and between her and the rest of the Court.’

The tension exploded into public view last term, when Jackson accused the originalist majority of placating ‘moneyed interests.’ In another case, Trump v. United States, where the Court held that presidents are immune from criminal prosecution based on official acts, Jackson fumed in a solo dissent that her colleagues were creating ‘a five-alarm fire that threatens to consume democratic self-governance.’ The decision, she warned, ‘incentivizes all future presidents to cross the line of criminality.’

Separately, in Trump v. Casa, in which the Court curbed the ability of district judges to issue nationwide injunctions, Jackson blasted the majority for issuing a ‘profoundly dangerous’ decision, for supporting a ‘rule-of-kings’ governance, and for ‘enabling our collective demise.’ The junior justice said she was dissenting ‘with deep disillusionment’ – signaling a loss of faith in the Court as an institution, the one sentiment the justices strive, above all others, never to betray in public.

That, too, was a solo dissent. And it prompted a stinging rebuttal from Justice Amy Coney Barrett, the second-most junior justice: ‘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.’

This term, things only got worse.

In Louisiana v. Callais, a decision handed down last month, the Court declared a racially-gerrymandered congressional district to be unconstitutional and ordered local authorities to redraw the state’s congressional map immediately. Following the decision, which delayed primary elections set for May 16, Justice Jackson condemned her colleagues for having ‘spawned chaos’ in Louisiana. More extraordinary – and unlike the litigants themselves – she objected to Callais being sent to the lower court sooner than the thirty-two-day waiting period typically observed by the Court’s printer; in essence, she sought a delay so the unconstitutional district could survive longer.

The author of the majority opinion in Callais, Justice Samuel Alito, an originalist completing his twentieth full term on the Court, rebuked Jackson for her ‘utterly irresponsible’ practice of making ‘baseless and insulting claims.’

‘She has a combative personality,’ said a veteran lawyer who has argued before the Court numerous times since Justice Jackson joined it. Thanks to changes in oral argument enacted by Chief Justice John Roberts, the justices are afforded time to pose questions toward the end of the sessions – and Jackson has abused the privilege, going on too long, exasperating the other justices.

‘She does it at almost every argument,’ the attorney told me. ‘It’s a source of friction with her colleagues. You can see their facial expressions when she’s on one of those rolls – of annoyance.’ The consensus among her colleagues and other Court veterans is that she ‘puts too much energy into poking people in the eye.’

At oral argument in the Callais case, Justice Jackson spoke more than any of her colleagues: nearly 3,000 words. That was also, according to Adam Feldman of Empirical SCOTUS, more than any justice had spoken at any argument this term.

Coming in second? Jackson, with 2,307 words in Trump v. Cook, the showdown over the termination of a Federal Reserve governor. And in third place – you guessed it: Jackson, with another 2,307 words in Wolford v. Lopez, a Second Amendment case. She also owned the seventh, eighth and ninth spots.

Forty years ago, another junior justice shook things up when he came swiftly to dominate oral arguments, threw barbs in dissent and questioned the Court’s jurisprudential drift. But the late Antonin Scalia, the godfather of original meaning jurisprudence who served nearly thirty terms until his untimely death in 2016, possessed a unique set of attributes – innate genius, dazzling literary gifts, humor by turns cutting and self-deprecating, an abiding affability and deep Catholic faith – that enabled him to forge friendships with Living Constitutionalists such as Ruth Bader Ginsburg and Stephen Breyer.

No observer of the Court currently sees Jackson doing that. ‘She has made herself an outsider even among her Democrat-appointed colleagues,’ a second legal activist told me. ‘She has the sharp elbows of Scalia without the wit, the ability to turn a phrase, or the gravitas.’

Defenders of the justice argue she is responding to the legal crisis of the Trump era – where the president’s critics see him trampling the separation of powers and rule of law – in ways that will accomplish more, long-term, than cribbed negotiations with the Republican-appointed justices.

‘Is the primary role of a liberal justice in this era of a conservative supermajority to salvage what they can from within, or to warn the country from without?’ asked Daniel Harawa, a professor at NYU School of Law, on SCOTUSblog. ‘Jackson’s approach may be the one this moment requires.’

President Biden promised to appoint a Black woman to the Court. The two other candidates who reportedly made the White House’s short list – Leondra Kruger of the California Supreme Court and J. Michelle Childs of the D.C. Circuit – would have built greater rapport with conservatives, as Kagan and Sotomayor have done, to eke out liberal wins, insiders said.

Ironically, Jackson’s antagonistic, highly personalized style is widely seen as damaging her ideological compatriots on the Court, the Living Constitutionalists, more than the originalists.

Justice Kagan, in particular – who is six years younger than Justice Sotomayor and reported to be especially displeased with Jackson’s agitations – could conceivably spend another fifteen years on the bench with her, locked in an unhappy minority.

‘The biggest loser in Justice Jackson’s tenure is Elena Kagan,’ Mike Davis of Article III told me.

Why?

‘Because she’s going to be writing dissents for the rest of her life.’

James Rosen is chief Washington correspondent at Newsmax and the author, most recently, of Scalia: Supreme Court Years, 1986-2001