“Great dissent”: Ketanji Brown Jackson stands as the Supreme Court's lone liberal hope

With the Supreme Court's term coming to an end, a slew of opinions are being handed down, many of which concern hot-button issues like voting rights and labor protections. Several of this term's early judicial findings prominently feature the court's newest voice: Justice Ketanji Brown Jackson.

For her first term on the high court, Justice Jackson displayed an incredible acumen for impassioned legal advocacy and effective argumentation. The influence of her addition to the court may be best seen in her quip-smart solo dissent in Glacier Northwest Inc. v. Teamsters. 

Drivers for Glacier Northwest, a Washington-based concrete delivery company, decided mid-morning to strike. Stopping work after the concrete was mixed and ready in their delivery drums, the unionized drivers left the drums rotating so the concrete supply wouldn't harden within the trucks. Glacier Northwest was eventually forced to empty these trucks, at which point the concrete hardened and became unusable. The company then sued the Teamsters for the destruction of property. The National Labor Relations Board (NLRB), however, is in charge of reviewing suits between employers and unions, at which point they can decide to protect the union or punt the dispute back to the state courts. Glacier Northwest's lawsuit was an attempt to circumvent that process. 

"The law has been settled for over 60 years that federal labor law preempts state law as to issues or conduct that is protected, arguably protected or arguably prohibited, or even clearly prohibited by federal law," said Dr. Catherine Fisk, a Professor of Law at the University of California, Berkeley, explaining that the National Labor Relations Act and legal precedent set by the ensuing case San Diego Unions v. Garmon demonstrate that federal law effectively preempts state law. "When they took the case, it was clear they wanted to change that law," Fisk said of the Supreme Court. 

After oral arguments, many legal observers and labor rights activists prepared for the worst, foreseeing a complete shutdown of this Garmon preemption doctrine that would open strikers everywhere to a flurry of lawsuits. The court, however, avoided this harsh anti-labor decision by employing a perplexing interpretation of Garmon. 

According to Garmon, the NLRA preempts any state-level suits even when the two arguably conflict. The court chose to interpret the choices of the Washington truck drivers as intentionally destructive to Glacier Northwest's concrete and trucks, arguing that this active and motivated destruction of property could not be argued to be under the protection of the NLRA. 

The majority opinion was signed by eight of the justices, including the more liberal Justices Elena Kagan and Sonia Sotomayor. This is likely because Justice Amy Coney-Barrett's majority opinion served as the lesser of two evils, not directly striking down Garmon's precedent, as Justices Clarence Thomas and Neil Gorsuch argued for in their concurrence. 

Justice Jackson, however, was the sole dissenter. 

In one of her first high-profile opinions for the court, Jackson slammed the court's insertion in a case that should have been solely reviewed by the NLRB, a federal entity charged with fact-finding. She went on to emphasize the role of the "Garmon pause," noting that the NLRB was meant to merely provide a temporary buffer between unions and the crushing power of state-level suits. By SCOTUS intervening, the court deprived this union of the initial protection of a legal pause, Jackson argued.  

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In scolding the court for stepping in where the NLRB should have held initial jurisdiction, Jackson demonstrated a significant understanding of the court in reference to other federal bodies. Especially after the recent EPA ruling, Dr. Fisk noted. 

"Great dissent," Dr. Fisk said. "Shows she understands the proper role of federal judges, especially the Supreme Court, in deferring to the politically accountable expert agencies charged with interpreting federal law."

"She displays a true understanding of and respect for the important role of the NLRB in adjudicating labor disputes," said, John M. Becker, an attorney at Sandulli Grace, P.C., a law firm that represents unions and employees.  

Towards the close of her dissent, Justice Jackson took the space to emphasize the right to strike and unionize, rebuffing the Court's growing anti-labor sentiments. In some incredibly striking words, Justice Jackson wrote, "Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA even if economic injury results."

Becker glowed over Justice Jackson's dissent: "At a time when the Republican Party (and a certain portion of the electorate) perceives unions negatively, Justice Jackson's robust affirmation of the important role unions play in the American economy is a breath of fresh air. I wish we lived in a world where Justice Jackson could get four more votes for her position, but we don't."

Her power can similarly be felt during oral arguments.

In a case that many believed would be the death of Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race, Jackson flipped conservative legal theory on its head to fight back against it. Harkening on notions of originalism, she effectively argued that the 13th, 14th, and 15th Amendments were intentionally race-conscious, rebuffing calls for a "race-neutral" reading. In turn, Chief Justice John Robert's majority opinion in Allen v. Milligan seemed to parrot this exact notion. Roberts dug into the founding principle of the Voting Rights Act, as articulated by its drafters. With a close 5-4 decision, it seems that Justice Jackson's flipped originalist theory effectively saved the Voting Right Act. And, considering Roberts' hostile record towards the legislation, his writing a forceful defense of the act — the first from the Court in 40 years — should be considered a high miracle on Jackson's part. 

Justice Jackson has also written notable majority opinions for the court. In her first opinion concerning the possibility of broad legislative change, Jackson firmly defended the right of Medicaid patients to sue government officials for violating federal Medicaid law. Here, the defendant claimed that Medicaid was an agreement between the states and the federal government, not the patient and the provider. But Justice Jackson shut this down with one swift blow: "We have no doubt that [the defendant] wishes §1983 said something else. But that is 'an appeal better directed to Congress.'"

As strategists and partisans consider the court's case of political chess, it's easy to consider Jackson's addition to the court as an effective "no change," replacing one liberal justice for another. However, if these three cases prove anything, it's that Justice Jackson — lone dissenter or not — is determined to maker her voice on the court heard loud and clear.