Neil Gorsuch Starts Some Supreme Court Drama. Ketanji Brown Jackson Ends It.

Today, the Supreme Court handed down its decision in Stanley v. City of Sanford, Florida. The majority decision, penned by Neil Gorsuch, limited the application of the Americans with Disabilities Act, saying an ex-firefighter did not have the right to sue her former employer over benefits. But more than just further eroding discrimination law in this country, the decision also gave us a peek into the petty back-and-forth of the High Court.

We know that SCOTUS is not immune to partisan differences causing personal rifts between co-workers. And that seems to be what’s going on in the Stanley case. Because Gorsuch takes the time to call out Ketanji Brown Jackson’s dissent, strongly implying Jackson seeks a judicial methodology that’s sufficiently “pliable to secure the result they seek.”

Failing all else, Ms. Stanley and the dissent ask us to look beyond text and precedent. Brief for Petitioner 29, 47; post, at 18 (opinion of JACKSON, J.). Finding “pure textualism” insufficiently pliable to secure the result they seek, they invoke the statute’s “primary purpose” and “legislative history.” Post, at 1, 15, 22. As they see it, the ADA’s goal of eradicating disability-based discrimination would be best served by a decision extending Title I’s protections beyond those who hold or seek a job to retirees.

LOL. Every accusation is an admission. But I don’t need to get too in the weeds defending KBJ, she’s got that pretty well covered. It’s a glorious footnote that’s deserving of the hype it’s getting. Here it is in its entirety:

The majority’s contention that I reject “‘pure textualism’ [a]s insufficiently pliable to secure the result [I] seek,” ante, at 10, stems from an unfortunate misunderstanding of the judicial role. Our interpretative task is not to seek our own desired results (whatever they may be). And, indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress’s aims does exactly that— and no more. By contrast, pure textualism’s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. By “finding” answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as “textual” inevitabilities. So, really, far from being “insufficiently pliable,” I think pure textualism is incessantly malleable—that’s its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.

Shorter footnote 12: fuck you and your textualism. She literally says everything liberals have thought about textualism for generations, but says it much more forcefully and elegantly. And she’s right too — for crying out loud: “textualism” was used to determine sanitation does not refer to keeping things clean because that would not align with conservative policy goals. KBJ is exactly spot on here.

Some have complained explicitly Sonia Sotomayor carved footnote 12 out of her signing on to Jackson’s opinion. And maybe it is Sotomayor trying to keep the peace with her right-wing colleagues. But this is the same justice that issued a dissent “in sadness” this week, so I see a little more nuance here. It was Jackson that Gorsuch picked a fight with, and perhaps not joining in footnote 12 was just Sotomayor’s way of letting Jackson have the stage to say exactly what she want to say.

And this footnote is a real *moment* for Justice Jackson — one Jackson (and Jackson alone) deserves all the accolades for.

Earlier: The Supreme Court Justices Have As Much Contempt For Each Other As The Rest Of America Has For Them

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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