Misrule of Law

One is too many; adding four more by “packing” the Court (as Democrats vow they intend to do) would destroy the rule of law.

Thanks to Real Clear Policy (here)!

In Louisiana v. Callais, objectors had filed a lawsuit in Louisiana to challenge the map drawn by the legislature to comply with a previous lawsuit by black voters, which was decided by a different federal court. The three-judge federal court ruled in favor of the objectors, finding that the challenged map was an unconstitutional racial gerrymander.

The Supreme Court, by a 6-3 vote, agreed with the court below, and correctly found that Louisiana’s map (SB8) was unconstitutional.

Oral argument in Callais was held on October 15, 2025. The Court’s decision was issued on April 29, 2026, nearly seven months after the case was argued (immediately following which the Court’s justice voted on the outcome); rumors abound that Justice Alito’s majority opinion was finished much earlier than the dissent authored by Justice Elena Kagan (appointed to the Court by President Obama), and that the motive for foot-dragging the dissent was to stall the issuance of the Court’s decision until it was too late to take effect prior to the mid-term elections. (The Democrat appointees had pulled the same stunt by slow-walking their dissent in Dobbs.)

Following the Court’s ruling on April 29, the objectors requested that the Court “issue the judgment forthwith” instead of waiting the customary 32 days in the event that a party seeks reconsideration. In light of Callais, Louisiana’s Governor had suspended the primary elections (based on the maps found to be unconstitutional), and the three-judge court in Louisiana ordered the state to file a brief explaining how it intended to comply with Callais.

On May 4, the Court granted the request. As a routine procedural ruling, this would have ordinarily been done via an unsigned order, except that one of the justices dissented. Not Justice Kagan, who wrote the dissent in Callais. Not Justice Sonia Sotomayor, who joined the dissent in Callais. The solo dissent on a purely procedural matter was filed by none other than Joe Biden’s autopen appointee, Justice Ketanji Brown Jackson. And, predictably, it was spicy, accusing the Court of creating “chaos” in the State of Louisiana and suggesting that issuing the judgment “forthwith” was done for partisan reasons. KBJ concluded her four-page dissent with this:

The Court unshackles itself from both constraints today [referring to Rucho and Purcell] and dives into the fray. And just like that, those principles give way to power. Because this abandon [sic] is unwarranted and unwise, respectfully, I dissent.

This was nothing short of an insult to the eight justices who voted in favor issuing the judgment forthwith, and especially to the six justices who formed the majority in Callais. Understandably, the author of Callais, Justice Alito, took particular umbrage at KBJ’s insolent dissent.

Justice Alito wrote a “concurring opinion” to the unsigned order, joined by Justices Clarence Thomas and Neil Gorsuch, criticizing KBJ’s dissent as “trivial,” “baseless and insulting,” “unthinking,” and “groundless and utterly irresponsible.” The concurring opinion ended with this:

The dissent accuses the Court of “unshackl[ing]” itself from “constraints.” It is the dissent’s rhetoric that lacks restraint.

This kerfuffle attracted attention from commentators. Law professor Jonathan Turley said that KBJ “has quickly developed a radical and chilling jurisprudence,” citing her “frequent sole dissents and accusatory rhetoric.” Turley is no fan of KBJ. He expressed surprise that she would object to allowing Louisiana to replace the unconstitutional map before the upcoming election. Turley warned that “What is even more chilling than Jackson’s jurisprudence is the fact that she is often cited as the model for Democrats seeking to pack the court with an instant majority if they retake power. This and other Jackson judicial dissents show why Democrats are so confident that packing the court will yield lasting control of the government.” Ouch.

Other commentators were similarly unimpressed with KBJ’s stunt. Power Line’s John Hinderaker opined that “Justice Ketanji Jackson seems to be auditioning for a role on MSNBC as a left-wing pundit.” Hinderaker added, in an unusually harsh assessment, that

As shown in a number of other instances, Justice Jackson is either a person of extremely limited intelligence or a political operative, rather than a legitimate judge. Her repeated personal attacks on her colleagues are unprecedented, at least in the modern history of the Court. They can best be understood, I think, as part of the Democratic Party’s effort to delegitimize the Court in order to lay a political foundation for court-packing or for disregarding the Court’s rulings in Democratic jurisdictions. Jackson’s role on the Court can perhaps best be seen as that of an infiltrator, rather than a judge. (Emphasis added.)

In a column for the New York Post titled “Why Ketanji Brown Jackson is hell-bent on destroying the Supreme Court,” National Review‘s Rich Lowry lambasted KBJ’s dissent thusly: “the tenor and substance of the Jackson dissent captures the mindset of a left that is increasingly determined to destroy the Supreme Court in order to save it.” Echoing Turley, Lowry continued:

It is a sign of how weak the Jackson dissent is that neither of the other progressives joined it, not even Justice Sonia Sotomayor. There’s no doubt that it would have been much better if this case had been decided sooner, but Alito dropped a suggestive footnote in his rejoinder to Jackson. He noted that the constitutional question in the case was “argued and conferenced nearly seven months ago.” This implies that the case was effectively decided right after oral arguments in October last year, and that the dissenters slow-walked it. Now, Jackson wants more delay — it serves the partisan interests of Democrats to preserve unconstitutional race-based congressional districts as long as possible…. All indications are that a commitment to some version of court-packing will be orthodoxy among Democratic presidential candidates in 2028. They will seek to make the highly isolated and wholly unpersuasive Justice Jackson part of a new court majority — imposed by political fiat. (Emphasis added.)

KBJ represents the Democrats’ conception of an ideal Supreme Court justice—a shrill, unprincipled, radical left-wing ideologue. I do not recall any such outbursts from another Supreme Court justice in my lifetime. Legal Insurrection‘s William Jacobson accurately hit the nail on the head when he stated that “KBJ has become the equivalent of a hand grenade that Joe Biden threw into the Supreme Court.”

Packing the Court with four more KBJs would destroy the Supreme Court as an institution.