Justice Ketanji Brown Jackson has torched her conservative colleagues and accused them of being at President Donald Trump’s beck and call.
Jackson, dissenting from a ruling that upholds a requirement that Americans have their sex at birth listed on future passports, suggested her fellow justices have lost sight of their purpose as a check on executive power.
“As is also becoming routine, this court misunderstands the assignment,” she wrote on Thursday.
Specifically, Jackson took issue with the Supreme Court issuing another emergency stay at the administration’s request—something she said is occurring too often. She was joined in dissent by the court’s other liberal justices, Sonia Sotomayor and Elena Kagan.
The anti-trans rule was introduced via an executive order that Trump signed in his first week back in office. It was immediately challenged in court.
The Trump administration requested an expedited ruling from SCOTUS after losing challenges in the lower courts. The executive order upends a policy that has long permitted transgender people to list their sex on their passports as how they identify.
To elevate the problem to the high court, the government contended that it faced irreparable harm—a necessity for issuing an emergency stay—if a decision on its anti-trans order was not issued imminently.
The court’s conservative majority ruled in the administration’s favor, 6-3, agreeing there was a threat of harm to the government if it did not intervene.
Jackson strongly disagreed.
“Our task in deciding stay applications is not simply to make a ‘back-of-the-napkin assessment’ of which party has the better legal argument,” the justice wrote.
She continued, “Such senseless sidestepping of the obvious equitable outcome has become an unfortunate pattern. So, too, has my own refusal to look the other way when basic principles are selectively discarded. This court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”
Jackson further described the ruling as being “pointless but painful perversion of our equitable discretion.”
Transgender Americans now must be identified by the gender listed on their birth certificate for future passports. Those whose passports already reflect their current identity do not have to change their gender until it is time to renew their passport.
Jackson wrote that trans people are the only ones suffering harm from such a policy, not the federal government, and certainly not Trump personally.
“As for the Government’s suggestion that the President is harmed by not being able to impose a uniform definition of sex across various regulatory schemes, that assertion is just another species of the far-fetched contention that the President must be injured whenever he is prevented from doing as he wishes,” she wrote.
