Jackson's dissent reads like it was haphazardly thrown together at the last minute. It's still excellently written and argued, but its structure is not as organized as I would otherwise expect and it isn't tight. The fact that she felt the need to write separately and didn't get the other liberals to join her further suggests that it was a last minute thing.
And the reason for it was the Supreme Court staying all the district court judgments against the Trump administration. This dissent isn't really about the birthright case. It's about the five stays the Supreme Court entered over the last month. In the last two cases, the executive didn't even point to Congressional authorization; it argued that it was acting according to its inherent executive authority to deport as it sees fit. Thus did the Trump administration argue that Congress could not limit its power, and the Supreme Court accepted that claim -- which is bullshit -- at least provisionally.
Well, in a world where Congress can not constrain the executive, that job falls to the Court. Otherwise, there are no checks on the executive. Someone has to restrain the president. If the Court will accept the president's contention that he has inherent executive authority to disregard the law, then it also has a concomitant obligation to ensure that the president at least obeys the constitution. Otherwise, we have no rule of law.
There are a couple of side notes here as well.
1. People who judge Justice Jackson on the color of her skin -- like our resident conservatives -- probably don't realize that she sees herself as an originalist. But she's not the Good German type of originalist as the majority. Consider that these "originalists" have now given the President monarchical powers. How is that originalism? Of all the things that we know the Founding Fathers DID NOT WANT, it was a monarch. So how is it possible for the originalist court to have arrived at the one place that everyone can agree the Founders did not want?
One answer is originalism is stupid and was never anything but a justification for abortion restrictions that metastasized into an uncontrolled monster. Another is that the unitary executive theory in particular is and always has been a load of horseshit.
Jackson offers a different diagnosis: the Court falls into line by understanding its role as deciding cases tiny issue by tiny issue without pausing to think about the larger consequences. So the majority says, "our role here is only to decide whether the universal injunction had an analogue in the practice of the English Chancery courts or the early Republic," it has already forfeited the game. In essence, the Court has reasoned itself piecemeal into upholding tyranny, and is thus helpless against the modern assertion of power. Of course the practice of the English Chancery Court did not protect itself against modern fascism. In 1690 it was impossible for the government to drive up in a van, throw people inside in silence or darkness, and then transport them hundreds of miles away to secret facilities. Absent reliable small arms fire, such a small crew could never assert control over a scene; it was an age, after all, of large slow armies that killed with thousands of inaccurate bullets, not precision semi-automatic fire.
Barrett has no response to this, which is why she chooses the longstanding approach of bullies everywhere: laughing at the speaker and hiding behind numerosity.
2. Barrett wrote something ridiculous, as she is wont to do, and was being called on it. Let's contemplate her assertion that
"JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary . . . In other words, [she finds it] unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive.
This is one of the most illogical and dangerous assertions in the history of the Supreme Court. It's the product of a mind trained to dwell on niggling provisions while ignoring the big concepts that apparently elude ACB and the majority. And it is THIS statement, not anything Justice Jackson wrote, that is lawless beyond comprehension.
A. First, at the outset: if the executive is ignoring Congress' limits on its power, why the hell should the Court feel itself bound by jurisdictional requirements set forth hundreds of years ago in a very different context? Basically, this is an Enabling Act: the Court isn't actually endorsing the fascism, but it's letting the fascism happen. The Executive has the military. Congress does not. Literally the only thing stopping the Executive is the rule of law. And if the rule of law disappears, then the court has no power to do anything. ACB has given away all of the Court's power to a tyrannical regime, which undermines her claim to be respecting the Court's proper jurisdiction. It would be the equivalent of arguing morality as the gravedigger is burying you alive.
B. Moreover, the total amount of power is fixed as between the branches of government. The question being presented in this case is how to divide up that power. The Framers saw it as a 33/33/33 type of distribution -- checks and balances for everyone. But that's not the way things have unfolded, and now we are looking at something more like 5/(95-X)/X where X is the power the judiciary claims. Maybe Congress' power is a 10 not a 5, or maybe it's almost zero as some commentators are saying. Doesn't matter to the point.
Anyone who thinks even slightly about this question will soon realize that an "imperial judiciary" is merely cutting into the executive's power. If the court asserts X = 20, then the Executive is still too strong but its power is still containable. But if the court asserts X = 2, because Congress long ago determined jurisdictional limits that are meaningless if the Executive can ignore the constitution, all that it has done is allow the executive to have 93%.
That is to say, ONLY an "imperial judiciary" can check an "imperial executive." ACB gets it completely and utterly wrong. The court asserting Article III authority to check Article II authority is not an increase in tyranny, as ACB implies. It's a bulwark against it.
3. The consistent theme across years now of SCOTUS bullshitting has been the fetishization of "separation of powers" to the exclusion of checks and balances. They seem not to grasp that separation of powers was never an end in itself; it was a means to the ultimate end of constraining the county's leader to lawfulness and not individual whims and discretion. The Framers divided the world into a) people who make the law; b) people who enforce the law; and c) people who declare the law. Note, in a cruel irony, ACB actually cites Marbury v Madison as a case about deference to the judiciary, which tells you all you need to know about her abilities as a con law professor (it's no wonder she couldn't name all the protections of the 1A).
And the pattern gets repeated now at great stakes. The Framers wanted the Judiciary to exceed its jurisdiction if necessary to fight the overreach of the executive. We know this because the overriding, overarching goal was to prevent tyranny.
It is nonsensical to think that the Framers would have thought that they could anticipate all forms of tyranny and properly analyze it. The Framers did not future courts to be asking, "do these remedies (or laws) closely match with the remedies that existed in 1789." After all, "it is a constitution we are expounding." The Framers wanted the co-ordinate branches to keep asserting themselves against overreaches of authority. Should it be necessary for the judiciary to fashion a new remedy for new assaults on freedoms, the Framers unambiguously wanted the court to do that.
This bolded paragraph is really what Jackson's dispute is about.
