"Much has been written about the differing strategies that Kagan and Jackson have adopted in their roles as members of the court's liberal minority: While Kagan takes a more institutionalist approach aimed at moderating the conservative majority, Jackson keeps pulling the fire alarm to warn the public about what she sees as the court's failure to rein in the current administration."
"These justices' concurrences in the tariffs case reveal that these tactical differences are reflected in the justices' views on statutory interpretation as well-with Kagan trying to beat the conservative majority at its own textualist game, while Jackson dismisses the majority's "pure textualism" altogether."
"This difference might sound academic. But it illustrates the deeper disagreements between the justices about how to counter their colleagues on the right. Should the liberal justices try to prove that the conservatives aren't following their own rules? Or should they demonstrate why those rules are flawed and arbitrary in the first place?"
On February 20, 2026, the Supreme Court declared President Trump's tariffs unlawful under the International Emergency Economic Powers Act in Learning Resources v. Trump. Chief Justice Roberts authored the majority opinion, marking a significant check on executive power. The case highlighted divergent approaches among liberal justices: Elena Kagan employs an institutionalist strategy, attempting to outmaneuver the conservative majority using textualist methods on their own terms, while Ketanji Brown Jackson rejects textualism entirely, instead warning the public about judicial failures to constrain the administration. These concurrences reveal fundamental disagreements about whether liberal justices should prove conservatives violate their stated rules or demonstrate those rules are inherently flawed.
Read at Slate Magazine
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