“Or Consider It The Other Way”

I've finally read Justice Jackson's dissent in Trump v CASA, and I understand why her critics are not referencing the opinion itself, but engaging in ad hominem ("DEI HIRE!") or straw man (the majority dismissal out of hand) arguments, instead.  When you've got nothing, resort to logical fallacies. Or just run in circles, scream and shout.

The opinion is well reasoned, but I hardly want to quote it all here.  Instead,  starting with the opening (I find that a very good place to start when seeking to summarize a long argument), I'll annotate the material quoted with my comments and include what I think is the summary of the heart of her argument.

I agree with every word of JUSTICE SOTOMAYOR’s dissent. I write separately to emphasize a key conceptual point: 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.

It is important to recognize that the Executive’s bid tovanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior. When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually sayingis that the Executive wants to continue doing something that a court has determined violates the Constitution—please allow this. That is some solicitation. With its ruling today, the majority largely grants the Government’s wish. But, in my view, if this country is going to persist as a Nation of laws and not men, the Judiciary has no choice but to deny it. 

Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law—full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.

The majority cannot deny that our Constitution was designed to split the powers of a monarch between the governing branches to protect the People. Nor is it debatable that the role of the Judiciary in our constitutional scheme is to ensure fidelity to law. But these core values are strangelyabsent from today’s decision. Focusing on inapt comparisons to impotent English tribunals, the majority ignores the Judiciary’s foundational duty to uphold the Constitution and laws of the United States. The majority’s ruling thus not only diverges from first principles, it is also profoundly dangerous, since it gives the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate. The very institution our founding charter charges with the duty to ensure universal adherence to the law now requires judges to shrug and turn their backs to intermittent lawlessness.

Yes, I think that is a reference to "No Kings."   But it's in keeping with the argument that the Executive is not above the law, and certainly not above the Constitution; and the futher argument the majority decision stands in opposition to both of those fundamental principles of the American system of laws and government.  And if "Focusing on inapt comparisons to impotent English tribunals" seems to echo Alito's opinion in the Dobbs decision, one can only say Barrett started it, and the echoes are not a dog whistle.  They also aren't the marks of sound legal reasoning, and that's what Justice Jackson is critiquing.  Especially when "comparisons to impotent English tribunals" are used to "[undermine] the Constitution and laws of the United States."  Justice Jackson states quite clearly that the majority gives Trump the power of a monarch with this decision. The irony, as we will see below, is that Barrett's rejoinder to this criticism is a sotto voce "I know you are, but what am I?"

The majority misstates Justice Jackson's argument (the straw man) the better to dismiss it:with a reductio ad absurdum (and a straw man; nice work, if you can get it):

The principal dissent focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity. JUSTICE JACKSON, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.

My first response is:  "Justice is neither a doctrine nor a line of cases; but it is the guiding principle of jurisprudence and of the legal system itself.  It seems the Court would discard even that for the expediency of serving Dear Leader Trump." Because that is the real "doctrine" behind Justice Jackson's critique.  The Court is either stung by that; or oblivious to it.  Same difference, really.

Justice Jackson doesn't focus on the critique already established by Justice Sotomayor, where the issues of equity are plainly addressed, so this critique by the majority is a red herring at best.  What she does focus on is the affect of this ruling, the injustice of it; but the majority is having none of it:

We will not dwell on JUSTICE JACKSON’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.

The precedent Justice Jackson cites is at odds with the caricature of a legal argument made by the majority. Again, echoes of Dobbs.  Here is an example of Justice Jackson following no known doctrine, and making an argument contrary to "more than two centuries' worth of precedent:

The power to compel the Executive to follow the law is particularly vital where the relevant law is the Constitution. When the Executive transgresses an Act of Congress, there are mechanisms through which Congress can assert its check against the Executive unilaterally—such as, for example, asserting the power of the purse. See K. Stith, Congress’ Power of the Purse, 97 Yale L. J. 1343, 1360 (1988) (describing Congress’s ability to “regulat[e] executive branch activities by limitations on appropriations”). But when the Executive violates the Constitution, the only recourse is the courts. Eliminate that check, and our government ceases to be one of “limited powers.” Gregory v. Ashcroft, 501 U. S. 452, 457 (1991). After all, a limit that “do[es] not confine the perso[n] on whom [it is] imposed” is no limit at all. Marbury, 1 Cranch, at 176.1

The reference to Marbury is an especially nice touch. 

Jackson's conclusion states plainly what the argument lays out in detail (with sources, despite the majority's petty dismissal) in between the opening, and the conclusion:

Or consider it the other way: When a court is prevented from enjoining the Executive universally after the Executive establishes a universal practice of stripping people’s constitutional rights, anyone who is entitled to the Constitution’s protection but will instead be subjected to the Executive’s whims is improperly divested of their inheritance. The Constitution is flipped on its head, for its promises are essentially nullified. So, rather than having a governing system characterized by protected rights, the default becomes an Executive that can do whatever it wants to whomever it wants, unless and until each affected individual affirmatively invokes the law’s protection.

Which is precisely where the Court has left us. 

A concrete example helps to illustrate why this turnabout undermines the rule of law. Imagine an Executive who issues a blanket order that is blatantly unconstitutional—demanding, say, that any and all of its political foes be summarily and indefinitely incarcerated in a prison outside the jurisdiction of the United States, without any hearing or chance to be heard in court. Shortly after learning of this edict, one such political rival rushes into court with his lawyer, claims the Executive’s order violates the Constitution, and secures an injunction that prohibits the Executive from enforcing that unconstitutional mandate. The upshot of today’s decision is that, despite that rival’s success in persuading a judge of the unconstitutional nature of the Executive’s proclamation, the court’s ruling and injunction canonly require the Executive to shelve any no-process incar-ceration plan that targets that particular individual (thenamed plaintiff ); the Executive can keep right on rounding up its other foes, despite the court’s clear and unequivocal pronouncement that the executive order is unlawful.

If that "concrete example" sounds familiar, or vaguely like reality in America today, I'm sure that's not an accident. No wonder the majority didn't want to deal with it.s

The majority today says that, unless and until the other political rivals seek and secure their own personal injunctions, the Executive can carry on acting unconstitutionally with respect to each of them, as if the Constitution’s due process requirement does not exist. For those who get to court in time, their right not to be indefinitely imprisoned without due process will be protected. But if they are unable to sue or get to the courthouse too late, the majority says, oh well, there is nothing to be done, despite the fact that their detention without due process is plainly prohibited by law.

But what is law, if the courts are not allowed to enforce it?

A Martian arriving here from another planet would see these circumstances and surely wonder: “what good is the Constitution, then?” What, really, is this system for protecting people’s rights if it amounts to this—placing the onus on the victims to invoke the law’s protection, and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to preventthe Government from violating it? “Those things Americans call constitutional rights seem hardly worth the paper they are written on!”

Irony of ironies:  they are only what the Court, in the final analysis, says they are.  Is anyone now surprised by Justice Barrett didn't want to address this in the majority opinion? 

These observations are indictments, especially for a Nation that prides itself on being fair and free. But, after today, that is where we are. What the majority has done is allow the Executive to nullify the statutory and constitutional rights of the uncounseled, the underresourced, and the unwary, by prohibiting the lower courts from ordering the Executive to follow the law across the board. Moreover, officers who have sworn an oath to uphold the law are now required to allow the Executive to blatantly violate it. Federal judges pledge to support and defend the Constitution of the United States against all enemies, foreign or domestic. 5 U. S. C. §3331. They do not agree to permit unconstitutional behavior by the Executive (or anyone else). But the majority forgets (or ignores) this duty, eagerly imposing a limit on the power of courts that, in essence, prevents judges from doing what their oaths require.

...

Today’s ruling thus surreptitiously stymies the Judiciary’s core duty to protect and defend constitutional rights. It does this indirectly, by preventing lower courts from telling the Executive that it has to stop engaging in conduct that violates the Constitution. Instead, now, a court’s power to prevent constitutional violations comes with an asterisk—a court can make the Executive cease its unconstitutional conduct *but only with respect to the particular plaintiffs named in the lawsuit before them, leaving the Executive free to violate the constitutional rights of anyone and everyone else.

Make no mistake: Today’s ruling allows the Executive to deny people rights that the Founders plainly wrote into our Constitution, so long as those individuals have not found a lawyer or asked a court in a particular manner to have their rights protected. This perverse burden shifting cannot co-exist with the rule of law. In essence, the Court has now shoved lower court judges out of the way in cases where executive action is challenged, and has gifted the Executive with the prerogative of sometimes disregarding the law. As a result, the Judiciary—the one institution that is solely responsible for ensuring our Republic endures as a Nation of laws—has put both our legal system, and our system of government, in grave jeopardy.

...

At the very least, I lament that the majority is so caught up in minutiae of the Government’s self-serving, finger-pointing arguments that it misses the plot. The majority forgets (or ignores) that “[w]ith all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” Id., at 655 (opinion of R. Jackson, J.). Tragically, the majority also shuns this prescient warning: Even if “[s]uch institutions may be destined to pass away,” “it is the duty of the Court to be last, not first, to give them up.

Further, certainly better,  I can say nought.