A footnote in Justice Ketanji Brown Jackson’s dissent in the case of Stanley v. City of Sanford suggests that disagreement between her and Justice Neil Gorsuch has become so heated that even her liberal allies on the court are keeping their distance.

Stanley, decided by a seven-to-two vote, narrowed the scope of the Americans With Disabilities Act by affirming the decisions of lower courts that a Florida firefighter afflicted with Parkinson’s, Karyn Stanley, was not entitled to the highest tier of benefits under the ADA. Only Justice Jackson and Justice Sonia Sotomayor dissented from the majority opinion written by Justice Gorsuch.

Justice Jackson fumed in her dissent that she “cannot abide” the “narrow-minded approach” embraced by the court’s majority, which has yielded a “stingy outcome” — the denial of benefits to Ms. Stanley. Justice Gorsuch contends: “This court has long recognized that the textual limitations upon a law’s scope must be understood as no less a part of its purpose than its substantive authorizations.” Justice Elena Kagan endorsed that position.

Justice Sotomayor, while joining Justice Jackson’s dissent, made a point of withholding her support for “n. 12” — a footnote penned by Justice Jackson. That means the footnote is hers alone. In that addendum she asserts Justice Gorsuch’s opinion contains an “unfortunate misunderstanding of the judicial role” stemming from the majority’s accusation that she is of the position that “pure textualism” is  “insufficiently pliable to secure the result” she seeks.

Justice Jackson instead castigates the majority by contending that “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.” She adds that “pure textualism is incessantly malleable—that’s its primary problem …  it is certainly somehow always flexible enough to secure the majority’s desired outcome.” 

Justice Jackson would have the majority read the ADA in light of its “sweeping purpose” and interpret its “text in light of its aims.” It was 10 years ago that Justice  Kagan famously pronounced that “we are all textualists now,” though in a case from 2022 she wrote in dissent, “It seems I was wrong. The current Court is textualist only when being so suits it.” Here, though, she refrained from joining Justice Jackson’s broadside against textualism.

The Sun spoke to a Supreme Court watcher, Joshua Blackman, who ventured that Justice Jackson is “trying to break the court’s fourth wall,” likening her rhetorical strategy to a direct-to-camera monologue on a “sitcom.” In addressing the public rather than her fellow justices, though, Mr. Blackman wonders if she is impairing the credibility of a court on which she has, potentially, decades left to sit.  

The court’s junior justice appears to be increasingly embracing the role of a voice in the wilderness. She wrote a furious dissent, joined by Justice Sotomayor, in another case from last week, Diamond Alternative Energy v. Environmental Protection Agency, which involved vehicle emissions. The court ruled that fuel producers have standing to sue regulations in California requiring automakers to manufacture more electric vehicles. 

Justice Jackson ventured, “This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens,” adding that the “fuel industry’s gain comes at a reputational cost for this court, which is already viewed by many as being overly sympathetic to corporate interests.” She claims her colleagues have an “aversion to hearing cases involving the potential vindication of less powerful litigants — workers, criminal defendants, and the condemned.”

Justice Jackson’s sledgehammer approach to Justice Gorsuch and his judicial style is newsworthy because the two justices have in the past made common cause. She broke with the liberals in joining him to reject an opioid settlement with Purdue Pharmaceuticals, and has also aligned with the Coloradan on cases involving criminal justice and in favor of due process for civil defendants. 

In Andy Warhol Foundation for the Visual Arts v. Goldsmith, a case involving the pop artist’s estate and  fair use, Justice Jackson endorsed Justice Gorsuch’s concurrence that “the question before us is a narrow one of statutory interpretation.” That issue of statutory interpretation is the very one that now appears to have opened a chasm between the two justices.