When power is not currently an option, you might as well tell the truth

Amy Coney Barrett’s pissy response to Ketanji Brown Jackson’s CASA dissent is a real hit dog hollers moment:

As Jay Willis observes, it is…convenient that Barrett did not choose to “dwell” on Jackson’s argument but instead dismissed it with a meaningless buzzword:

Perhaps the best evidence of the efficacy of Jackson’s approach is how angry the conservatives are with her for calling them out. Writing for the majority in CASA, Justice Amy Coney Barrett described Jackson’s argument as “difficult to pin down,” and vowed not to “dwell” on it any further. 

In news that I’m sure will astonish you, conservative commentators quickly picked up on the subtext here, calling Jackson, the first Black woman justice, a “diversity hire” who doesn’t understand “what she is talking about.” But even setting aside Barrett’s hand-waving condescension, her brevity is also pretty unusual: Typically, justices relish the chance to explain in excruciating detail why their opponents are wrong, especially when they get to do so in a majority opinion. Barrett’s choice not to even try a spike-the-football rejoinder should be understood as a tacit admission that she doesn’t really have one.

Jackson’s point, needless to say, is that it’s absurd to think that it was “doctrine” that was driving the Republicans on the Court to suddenly “discover” when a Republican administration literally acted to nullify the most important amendment to the Constitution that lower courts are limited to the equity remedies that were available to courts in a country with completely different constitutional structure 250 years ago. Nor can anyone look at the Roberts Court’s body of work and think it’s being driven by a modest conception of the role of the federal judiciary. Barrett has no answer to the point because it is unanswerable.

Given that Kagan and sometimes even Sotomayor have sometimes not joined KBJ’s legal realist dissents, there is a strategic question here. I agree with Jay that KBJ also has this right:

Critics of dissents like Jackson’s typically point to the supposed perils of burning bridges: When you are someday asking a colleague to supply a crucial fifth vote, the argument goes, you do not want them to suddenly remember that one time you called them a partisan hack. 

I have never found this especially persuasive, but to the extent that savvy coalition-building would have been an essential part of Jackson’s job once upon a time, it is not anymore. This conservative supermajority has never shown any interest in compromise, because it never has any need to do so; in the three years and change since she became a justice, Jackson’s only experience in high-stakes cases has been getting steamrolled in spectacular fashion. At this point, if you are a liberal justice, the only thing you accomplish by continuing to moderate your language is conveying the impression that you don’t actually care about losing all that much.

[…]

Only one opinion per Supreme Court case really matters: the one that earns five votes. So anytime a justice writes separately, the question is always why: Who is it for, and what does the justice hope to accomplish by voluntarily doing extra work? Some justices have reliably specific audiences: When Justice Clarence Thomas dissents (or writes a solo concurrence), he is coaching conservative activists to bring more ambitious cases in the future. Chief Justice John Roberts writes for the legal journalists whom he needs to keep writing soft-focus profiles that cast him as the Court’s principled institutionalist. Justice Brett Kavanaugh writes for his liberal neighbors in the Maryland suburbs, trying desperately to persuade them that he is neither as dumb nor as malevolent as his votes suggest. 

Jackson’s audience is different: She is writing for the public. She is assuring tens of millions of people who are not lawyers that, no, they are not wrong to question the good faith of a Republican-controlled Court that keeps siding with a Republican president. She is pointing out the real-world consequences of the Court’s decisions that her conservative colleagues do not want to discuss. Most importantly, she is urging people to be skeptical of the story the Court loves to tell about itself: that the task of interpreting the law is not “political.” This has always been wrong. But no justice has come quite so close to saying it. 

As I’ve said before, a generation of Court watchers was enamoured with the early Burger Court period in which William Brennan was able to take advantage of a center of the Court that consisted of idiosyncratic conservatives who cared what the mainstream press thought about them was able to put together some surprising majority coalitions, and not enough on the Rehnquist Court perion in which Brennan’s attempts to turn on the ol’ Irish charm were somewhere between useless and counterproductive because the conservative chambers had the votes and didn’t care.

Even when the Court had a more moderate median vote, I’m dubious that holding rhetorical fire provided much leverage. Scalia would go out of his way to rhetorically excoriate the median vote on the Court, but AFICT it never affected O’Connor’s future votes at all. Which makes sense — why would O’Connor vote for an outcome she didn’t want to spite a fellow conservative for criticizing her? And when O’Connor and Kennedy joined the liberals in important cases, this was generally because they just substantively agreed with what liberals wanted, not because they were doing people favors or horse trading.

But anyway, even if you assume that discretion was the better part of valor when theoretically persuadable country club Republicans were at the center of the Court, those days are loooooong gone. There is circumstantial evidence that Breyer actually thought that he could broker some kind of deal on abortion and finally resigned as soon as the obvious fact that he could not was dispositively revealed. Jackson understands what too many judges from a previous generation do not.* The strategic gains to be had from reticence are illusory. Your audience is the public and posterity — you might as well tell the truth.

*The classic example was Ruth Bader Ginsburg letting noting paragon of civil discourse Antonin Scalia bully her out of mildly referencing Jeb Bush’s massive disenfranchisement of African-American voters in a case in which the Republican majority was literally stealing a presidential election with a farcically lawless decision:

Well, at least this allowed her to get a vote from Scalia she wouldn’t have otherwise gotten in, er, zero cases, but at least she ensured that she would be replaced by someone who shared her constitutional…I’ll come in again.