The two newest members of the Supreme Court of the United States — Justice Amy Coney Barrett and Justice Ketanji Brown Jackson — have been turning heads over their intense questions in oral argument and the recent departures from the judicial right and judicial left, respectively. The two new justices have been predominant during the latest session of oral arguments, striking to the core of their ideological opponents’ arguments. Furthermore, both Barrett and Jackson have departed from the traditional judicial right and left in recent cases, showing an independence from their respective ideological camps.
Justices Barrett and Jackson engaged in noteworthy lines of questioning in Biden v. Nebraska (2023). Both challenged the petitioners’ and respondents’ arguments both on Missouri’s standing and interests in MOHELA and the merits of the separation of powers case on President Biden’s student loan forgiveness programs. Both Barrett and Jackson seemed cautious in Missouri’s standing in the case, questioning to what extent MOHELA is tied financially with the Missouri government. On the merits of the case, Justice Barrett seemed more supportive of the separation of powers questions, while Justice Jackson suggested that separation of powers requires the Court to not decide political questions without a party coming to them with standing.
Another recent case that attracted attention to both justices is the relatively minor case Bittner v. United States (2022), where Justice Jackson joined Republican-appointed Justices Roberts, Alito, Gorsuch, and Kavanaugh in the majority holding that if a person breaks the law by failing to report offshore accounts, the number of violations are the number of erroneous reports. Justice Barrett wrote the dissenting opinion joined by Justices Thomas, Sotomayor, and Kagan, arguing that the number of violations are the number of accounts the individual fails to report correctly. In this case, Bittner’s fines were $50,000 with the majority’s decision, but the fines would be $2.72 million had the Court sided with the Government.
This case was noted in the press as an unusual 5-4 breakdown, but it is more notable for the insight it can give into Justice Jackson’s judicial philosophy. As reported by slate.com, Jackson joining Gorsuch’s majority opinion in its entirety may show a libertarianism in Justice Jackson’s judicial values that could predict how she will rule on future cases.
Oral arguments in other cases have shown how brilliant both these women are. Recent hot-button cases Students for Fair Admissions v. University of North Carolina (2022) and 303 Creative v. Elenis (2022) showcase the brilliance of both Justice Barrett and Justice Jackson through their questions in oral arguments.
In Students for Fair Admissions, Justice Jackson’s main concern with the petitioners’ argument is the effect of admissions committees taking everything into consideration except race, where an applicant’s race is so vital to their experience that he writes about it and the committee cannot take that story into consideration. However, in response to Justice Barrett’s question, the petitioners argued that such an essay would be able to be taken into consideration since it’s about the student’s experiences, not simply a checkbox for race alone deciding his admission. Justice Barrett was also concerned with the implications on religion and religious’ institutions’ interest in boosting the admissions of their own adherents in their universities.
303 Creative is notable for its possible extension of the narrow Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) ruling. The big implication of this case is how a ruling in petitioner Lorie Smith’s favor would affect discrimination laws across the country. All justices, but Justice Jackson in particular, challenged the petitioners on what constitutes a “public accommodation” subject to the antidiscrimination law and what acts display a “message” subject to First Amendment protection. She focused specifically on a hypothetical where a photographer refuses to take 1950s themed pictures of a black family with Santa Claus because the message he wants to send is an authentic 1950s theme that excludes black families.
While Justice Barrett challenged the petitioners on the scope of the decision, she focused on how Smith’s refusal to make gay wedding websites was not because of the identity of the customers but because of her refusal to make any website displaying a message contrary to her religious beliefs. For instance, petitioners argued that Smith would refuse to make a marriage website for a heterosexual couple that were divorced and that she provides services for LGBT clients, such as creating business websites and designing logos. This, in the petitioners’ view, shows that Smith is not discriminating against gay people, but rather refuses to design anything that would show support to a cause inconsistent with her religious beliefs.
Only time will tell how influential Justice Barrett and Justice Jackson will be on the Court, but if early signs are indicative of the future, Barrett and Jackson may replace former Justices Antonin Scalia and Stephen Breyer as the brilliant leaders of their respective judicial camps. Or, perhaps these justices will surprise pundits and politicians and work against the grain, revolutionizing the Court for generations to come.