The Court's Liberals Are Trying to Tell Americans Something - The Atlantic

[In It to Win It]

The Atlantic - Gift Link

In recent Supreme Court terms, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson have issued defiant dissents that push back against a seemingly endless cascade of conservative opinions. The three tend to take somewhat different approaches. Kagan has typically focused on exposing the majority’s shoddy reasoning, Sotomayor has underscored its complicity in wrong, and Jackson has placed it within larger systems of oppression. One might think, just skimming the dissents, that everything is as it should be: The Court takes cases. It hears arguments, and it votes. Those on the losing end dissent. One can read the majority opinion and the dissent, and see reasonable people disagreeing courteously and reasonably. That’s how the law is supposed to work, right? All is in order, same as it has been since the 1920s at least.

But look closer at the dissents, and it is evident that, whatever their differences, the three liberals agree on an overarching theme: They no longer see the Court playing by the old game of constitutional law. Their dissents suggest anything but an assumption of business as usual. The three liberal justices are writing about a majority unbound by law and its tiresome technicalities—about a majority that is no longer doing law as that term has come to be understood.

In other words, the dissents are screaming that the old game of law is no more; we’re in a different world, they say. Their critiques of incoherence, internal contradiction, and factual obfuscation are all in service of this.