Martians, Melodrama, and Make-Believe Law

A Look Inside Justice Jackson’s 22-Page Equity Tantrum

OPINION: By Walter Curt

The pundit class has been hyperventilating ever since the Supreme Court clipped the wings of so‑called “universal” injunctions, yet the same talking heads studiously avoid showing viewers what Justice Ketanji Brown Jackson actually wrote in her 22‑page dissent. Why? Because the minute ordinary Americans read her words, the DEI fairy dust settles and the emptiness of the argument is obvious.

Consider the first page of her opinion: “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” That line sounds fierce until you remember what the majority just reminded us: “Complete relief is not synonymous with universal relief.” The plaintiffs get their day in court; they win their own injunction; everyone else is free to file the next morning. That is how Article III’s “case or controversy” requirement has worked since—brace yourself—Marbury v. Madison. Yet Jackson waves that “boring legalese” away as a “smokescreen.”

The media chorus intones that Barrett’s majority “guts protections,” but refuses to quote the opinion’s killer question: “Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle for a century.” Exactly. Universal injunctions did not even appear until 1963—long after Lincoln, FDR, civil‑rights litigation, and every other crisis the Republic survived without letting one district judge shut down national policy for 350 million people.

Jackson, by contrast, proposes that a single court’s reasoning should bind the whole nation, warning that if the Executive follows the law only as to the actual plaintiffs, “executive lawlessness will flourish, and our beloved constitutional Republic will be no more.” That is not legal analysis; it is an audition for cable‑news doomsayer‑in‑chief. Lest anyone miss the melodrama, she drags in Martians: “A Martian arriving here… would surely wonder: ‘what good is the Constitution, then?’” One almost expects dramatic organ music in the background.

No wonder editors keep her prose off‑camera. Imagine running that quote next to the majority’s calm rejoinder: “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” Hard to spin that as a MAGA talking point when Barrett, joined by Kagan and Jackson’s own liberal colleagues on other occasions, simply applies Grupo Mexicano and two centuries of equity practice.

Jackson’s dissent is larded with rhetorical fog, but two passages deserve special attention. First, her premise that a court must be able to “order everyone (including the Executive) to follow the law—full stop.” Sounds patriotic—yet she never explains how universal injunctions accomplish that goal when (1) only the named plaintiffs can actually hold the government in contempt, and (2) the Executive can still appeal. The majority dryly notes the obvious: “If a judge in the District of Alaska holds that a criminal statute is unconstitutional, can the United States prosecute a defendant under that statute in the District of Maryland?” Jackson never answers.

Second, she paints a nightmare in which a hypothetical president throws political enemies into offshore prisons. That scenario ignores habeas corpus, existing criminal‑procedure safeguards, and one more pesky historical fact: the Court blocked Lincoln’s military tribunals without the aid of a nationwide injunction. When your best scare story is legally pre‑empted by 19th‑century doctrine, it may be time to rewrite rather than cut‑and‑paste.

The dissent’s real grievance is not constitutional—it is sociological. Jackson repeatedly invokes “lived experiences,” a phrase she trotted out last term. Sorry, but the Constitution does not bend to autobiography. It bends, if at all, to text, history, and precedent. Her closing flourish—“Why all the fuss? … this ruling is a seismic shock”—encapsulates the confusion: either the issue is minor procedural footwork or the end of self‑government. It cannot be both, yet the dissent insists on the contradiction because emotional swing is the stock‑in‑trade of activist judging. This is the same Justice who, during confirmation, could not define the word “woman”—a term Congress, Title VII, and the Voting Rights Act use without apology. Now she cannot define “injunction.” The pattern should unsettle anyone who believes the Court exists to apply law, not to preach a faculty‑lounge sermon about power and privilege.

That brings us to the question the press won’t ask: How did a jurist with such a paper-thin grasp of foundational principles sail through confirmation with 53 votes? Partly, yes, because the Senate has let identity eclipse jurisprudence. But partly because legacy media ran the same interference then as now—romantic profile pieces, zero scrutiny of scholarship, and a blanket refusal to quote the nominee when her words undercut the narrative. If Americans had read her 2020 Martin Luther King Day lecture—where she praised “courage, purpose, and authenticity” as Black women’s “cultural preparation for resistance” — they would have spotted the activist streak long before she donned the robe.

We are stuck with Justice Jackson for decades, and the problem is bigger than any one case. When a sitting justice treats the limits of judicial power as mere “technicalities,” the rule of law shifts from anchor to afterthought. Future litigants will cite her dissent as license to demand courtroom vetoes over every federal act they dislike. If a district judge in San Francisco can halt Texas abortion policy, a judge in Tyler can halt EPA rules. The result is not civil‑rights utopia—it is policy roulette.

To prevent that future, the constitutionalist right—and any intellectually honest left‑of‑center lawyers—must reclaim confirmation hearings as a venue for serious textual interrogation, not televised virtue signaling. Ask nominees to explain Marbury, Grupo Mexicano, and the inherent limits on equity. Ask them how their “lived experiences” translate into vote‑countable doctrine. If they cannot answer, vote no—no matter the hashtags.

So the next time cable hosts shriek about Supreme Court “extremism,” turn off the panel and read the opinions yourself. You might wonder, as I do, why the only people afraid to let Justice Jackson speak are the journalists who hail her as a national treasure. Could it be that the treasure is fool’s gold, and they know it? You decide.