We expect you have been practicing and perfecting the art of the dissenting opinion and will be well-prepared to author an endless string of them until the day you retire in abject frustration.
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Dear Justice Jackson,
Congratulations on yesterday’s historic swearing in! We want to warmly welcome you as our newest SCOTUS colleague and tell you how much we look forward to debating with you the direction of our nation.
Of course, we don’t expect there to be much actual “debate,” given that we are firmly in control of the agenda and decision-making process and, as you may have noticed, have a plan.
We expect you have been practicing and perfecting the art of the dissenting opinion and will be well-prepared to author an endless string of them until the day you retire in abject frustration.
Well, majority opinions can get to be a drag after a while, especially when they are so utterly predictable that the wags can parse them in advance — even those that have not been leaked. We truly envy you the creative freedom of dissent and expect you to continue the fine new tradition of keening and wailing at a Court that has “lost its way” and “strayed from principle and reason.” Lean in and have a blast — it’s what you’re here for, Ketanji. May we call you Ketanji?
Also, should you be experiencing any misgivings about life as a judicial eunuch, we hope you will consider the bright side.
As a circuit court judge of your persuasion, what would you have had to look forward to, really? With the decisions we’ve just put on the books and the opinions coming down the pipe, even the cleverest of our subordinates will be hard pressed to do more than grudgingly apply our wisdom to whatever may be brought before them, and remind those one floor down to get in line and do the same (Stare decisis, you know!). And what fun would that be?
Ketanji Brown Jackson, serving as a Judge in the US District Court for the District of Columbia, being honored at the Judge James B. Parsons Legacy Dinner, February 24, 2020, University of Chicago Law School. Photo credit: Lloyd DeGrane aka Wikicago / Wikimedia
Then think of how close you came. You might have been on the Court that killed Roe! That hog-tied the EPA and warmed up the world yet another degree. That prattled on lovingly about “tradition” — then struck down a New York gun law that had been on the books for a century. That completed a 30-yard pass in our drive for a theocracy touchdown. That struck a blow against pretty much every constitutional guarantee except the absolute almighty Second Amendment.
You missed all that, courtesy of the long-suffering Justice Breyer, and come to us unbowed, and fresh-faced, and ready to get on with the business at hand.
By way of welcome, and to help you get started on that Mississippi of dissents that will soon be flowing from your pen, we thought we might bring you up to speed on what that business will be — our plan for the October term. We wouldn’t want to hide the ball. We know it’s been a crazy week for you — us too! — and certainly understand. So just to let you know, in case your attention is flagging, we’re going to leave the best for last.
Actually, for the most part, we expect our next term to be something of an anti-climax, a chance to catch our breath after our forced march through the burning ruins of public opinion and settled law. I mean, really, how can we top Dobbs for sheer chutzpah? But we do have some unfinished business to take care of.
We’re done, for the moment, with the air, but we’ve set our sights on the water. Our opinion is that it’s just too damn clean and it’s high time we do something about it. So get ready to eulogize the Clean Water Act in what we’re sure will be a masterfully impotent dissent.
But there’s some really good news: You’ll be spared such rigors when it comes to our next little bombshell, having presciently pledged your recusal when the Harvard case came up in your hearings.
Congratulations, by the way, for your fine job on that storied, but recently erring, institution’s Board of Overseers. And how could you have known, when Harvard called, that we’d pick on them to kick whatever teeth are left out of affirmative action? Imagine, of all the gin joints in all the towns!
And look at it this way, Ketanji — may we still call you Ketanji? — we’re not taking anything away from you! You got the full ride, all the way here, starting back when we were still an embryonic gleam in Leonard Leo’s eye.
But these are mere matters of policy, reversible in theory — though, let’s be realistic here, not while we are in power. And, for our pièce de résistance, we’ve figured out how to make sure that’s, well, forever.
Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Ketanji Brown Jackson in the West Conference Room, Supreme Court Building. Photo credit: US Supreme Court
You see, and you’ll certainly come to agree with us that it’s a terrific perk: However we managed to get here, we’re all here for life. And when we go — which, for at least some of us, will be ages hence — there will be a president and a Congress to fill the seat. And we’ve just figured out how to make sure that president and Congress will be — wait for it, Ketanji — Republican!
The case is Moore v. Harper and it’s a real humdinger! It’s about some redistricting in North Carolina and who gets to draw the maps. It’s a little complicated — hey, that’s why we make the big bucks, right? — but we know where we’re going, don’t we? Even if we have to act all open-minded and undecided until we lower the old 5-4 (or 6-3) boom. Coyness becomes us of the long, black robes.
So, not to keep you in suspense, when the dust settles on Moore, we will have breathed life into the Independent State Legislature doctrine, you will have dissented vigorously and passionately, and Karl Rove’s “permanent Republican majority” will be established, well, permanently. It’s all in the cards — what we’re all here for. That is, what we’re here for — though we’re sure you have some reason for being here too! The beauty of it is it’s right there in the Constitution — hidden in plain view for centuries, though given the big eye roll by every Court in our history. Well, our love of tradition only goes so far!
Our Constitution says (Article I, Section 4): “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” and we’re here to tell you that, dadgum, it means what it says! And then some!
No matter that just last year it was a far-right fringe theory, a sequence of nonsense constitutional DNA going nowhere fast. No matter that previous Courts, including this one, have consistently recognized a role, when it comes to federal elections, for state courts interpreting state constitutions, and even governors and secretaries of state — hey, it takes a village, as you might put it, to run an election.
So, for instance, if a state legislature, immutably gerrymandered body that it is, set up an election in violation of the state constitution, the state’s highest court might undo that error and temper such hyper-partisan zeal. As did the one in North Carolina.
Well no more! The US Constitution is the “supreme Law of the Land” and we’re its sole owners (you remember Marbury, right?), so state constitutions, courts, and governors can just go pound sand.
Now all this may seem rather tiresome and theoretical — I mean does anyone out there really care about a few maps or who gets to set up the voter registration website or dropbox locations? Actually, we do!
And here’s why. We — I mean “they,” Republicans — control both state legislative chambers in 30 states, including just about all those pesky purple “swing” states. And those majorities — courtesy of the efficient gerrymandering greenlighted by our recent decisions — are so locked in that even states that elect Democratic governors and cast more votes for Democratic candidates for the US House will have Republican legislative control till the cows come home.
Sophisticated computer mapping programs can surgically slice voting districts to benefit one party or the other. Photo credit: WhoWhatWhy
We’ve seen what those legislatures are doing with that control when it comes to elections: everything from a host of making-it-harder-to-vote laws, to nifty redistricting, to proposals to simply take over and alter the results of elections whose outcomes they don’t like.
Yes, it took them awhile to get their act together but now they’re getting their hooks into just about every aspect of our presidential and congressional elections. Because, for some crazy reason, they’re beginning to think they can — and we’re going to tell them, come next term, that, by golly, they’re right! It’s right there in the Constitution, plain as day.
We’re not results-oriented, of course — this is all about process! Fair, above board, e pluribus Republican! Which, of course, includes us and all our successors. Alas, the American public will be woefully out of step with the Court until the last Trump (sorry).
Well, there it is. The heavy lifting has been done. Once again, a hearty welcome and heartfelt congratulations. We look forward to seeing you in October and reading your well-reasoned dissents.
Signed,
Per Curiam
