Jackson’s dissent isn’t heroic. It exposes big problem with Supreme Court. | Opinion

As the Supreme Court term reaches its end, the decisions tend to become more divisive. It’s a phenomenon that many court watchers suspect is a sort of burying the often unpopular lead, but the reality is that the court’s nonunanimous decisions take more time to draft while the majority opinion sorts out its take and the dissent levies its rebuttals.

Naturally, the more divisive cases tend to mean that tensions reveal themselves more, and the justices are more likely to take shots at each other in their majority opinions and dissents.

Justice Ketanji Brown Jackson and Justice Neil Gorsuch took some fierce swings at each other in Stanley v. City of Sanford concerning a retired firefighter who wants to sue her former employer.

Cast in much of the media coverage as a “declaration of independence” or being “done playing nice,” Jackson’s jabs cast her as a hero. But the spat between her and Gorsuch reveals a deep divide in how they look at the role of the Supreme Court – one that’s not necessarily a good thing for America.

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Justice Jackson criticizes ‘pure textualism’

The heated debate between Jackson and Gorsuch stemmed from a rather technical case concerning whether a retired firefighter could, under the Americans with Disabilities Act, sue her former employer for terminating her health insurance.

Gorsuch’s majority opinion went out of its way to address the dissent from Jackson: “Finding ‘pure textualism’ insufficiently pliable to secure the result they seek, they invoke the statute’s ‘primary purpose’ and ‘legislative history.’ “

In layman’s terms, Gorsuch accused the court’s most junior justice, Jackson, of ignoring the text of the statute to manufacture a decision that aligned with her desired outcome of the case – a serious charge to be levied between members of the court.

“It is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent,” Jackson wrote in her dissent. “By ‘finding’ answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as ‘textual’ inevitabilities.”

Jackson’s response more or less turns Gorsuch’s charge back on him (much like a younger sibling saying “nuh uh”). She accused the majority of disguising their policy preferences through a strict reading of the text, ignoring outside context that does not fit their narrative.

Jackson dedicated a rather long footnote to levy her criticisms of Gorsuch. Still, her complaints couldn’t even muster Justice Sonia Sotomayor’s approval, who signed on to large chunks of Jackson’s dissent but excluded herself from the contentious footnote. The text is made all the more ridiculous considering Justice Elena Kagan, one of Jackson’s frequent liberal allies, sided with the six conservatives in this case.

Jackson’s problem should be with Congress, not the court

What Jackson fails to understand is that if the Supreme Court does interpret the text of a statute to be more narrow than Congress intended, the lawmakers can follow up and clarify what they meant with new legislation.

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Judges should not be expected to do the legwork of deciphering what Congress meant at every turn. Due to the significant ambiguity there is in deciphering the intent of the entire legislative branch, doing so is inevitably going to result in accusations of legislating from the bench.

Judges should stick to the text of statutes whenever possible, and if their determination of what the text means is out of step with what Congress intended, then Congress can pass legislation correcting the original language of a statute.

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Legislation is not frozen in time. Congress has the ability to clarify the meanings of old statutes that are somehow ambiguous. Often, they simply lack the will.

However, this doesn’t mean that the judicial branch needs to take on more of its responsibilities. We’ve already seen the failures of that line of thinking with regard to universal injunctions blocking executive action. Jackson’s gripes with her colleagues are misplaced; they should be levied against Congress for its production of ambiguous statutes and refusal to clarify their meaning.

Congress’ laziness, or maybe apathy toward meaningful legislation, cannot be solved through judges usurping the lawmaking abilities. Doing so will only exacerbate the problem, with Congress refusing to step in as the judicial branch corrects its mistakes.

In this case, Gorsuch got it right, and an ideologically diverse coalition of justices agreed with him. Jackson is the one out of step.

Dace Potas is an opinion columnist for USA TODAY and a graduate of DePaul University with a degree in political science.

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This article originally appeared on USA TODAY: SCOTUS term ends as infighting between justices ramps up | Opinion