They Were Two of the Court's Strangest Bedfellows. Their Alliance Is Coming Undone.

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This jab prompted a furious response from Jackson. Gorsuch's critique, she wrote “stems from an unfortunate misunderstanding of the judicial role. Our interpretative task is not to seek our own desired results (whatever they may be).” And, she added, “it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indications of what Congress wanted, as best we can ascertain its intent.” Jackson continued:

A methodology that includes consideration of Congress's aims does exactly that—and no more. By contrast, 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. 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. So, really, far from being “insufficiently pliable,” I think pure textualism is incessantly malleable—that's its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority's desired outcome.

Jackson's response refutes Gorsuch's claim that textualist can always divine a law's true meaning from words alone. The truth is that textualism does not constrain judges , and there are countless examples of its proponents contorting a statute's text to achieve their desired result . But Jackson did not merely criticize the methodology; she also implied that Gorsuch practices it in bad faith, enshrining his “policy preferences” under the “disguise” of statutory interpretation. Indeed, she expanded this rebuke to an undefined “majority” that relentlessly imposes its “desired outcome” on the nation.

It is telling that even Sotomayor refrained from joining this passage. She and Kagan have taken a cautious attitude toward textualism, cognizant of its ability to deliver occasional victories for the left. In 2015, Kagan publicly stated that “we're all textualists now.” And while she later walked back that statement, the justice has maintained a text-first approach while arguing for a more holistic look at “text in context.” Sotomayor is usually by Kagan's side in these cases. And even when they do disagree , it is over the specific meaning of a law's words, not the deeper question of how a judge must interpret them. Indeed, both justices have repeatedly scolded the conservatives for failing to apply textualism as rigorously as they should. The two seem to have accepted the theory's ancestry and would rather apply it fairly than disavow it altogether.

In Stanley , Jackson broke decisively with this strategy, repudiating the judicial philosophy in question as a “narrow-minded” and “incessantly malleable” tool that lets biased judges project their own agenda onto the law. With Friday's dissent, Jackson split from Sotomayor and Kagan in another way: She suggested that the enterprise around which Gorsuch built his career and reputation is bogus. Kagan and Sotomayor have avoided accusing Gorsuch of intellectual dishonesty in such harsh terms, perhaps in an effort to pick up his vote more often. Sotomayor has also teamed up with Gorsuch from time to time when his civil libertarianism drives him to the left.

What's jarring about Jackson's Stanley dissent is that she, too, previously appeared to be aligning herself with Gorsuch on questions about what the law means and how it should be interpreted. She was, for instance, the only justice to join him in supporting stronger due process protections for people facing civil penalties. She was also the lone justice to join his dissent from the court's extension of COVID-related immigration restrictions at the border. She lent him the decisive vote in a 5–4 decision rejecting an opioid settlement with Purdue Pharma, breaking with her fellow liberals to do so. And in 2023, she joined his textualist competition in a case about artistic freedom. The two sometimes tag-teamed on the bench in cases involving criminal defendants, the area where they agree the most frequently .

Lately, though, the dynamic between Jackson and Gorsuch—on the bench and in opinions—has grown chillier, a trend that Stanley confirms. Part of the problem may be Gorsuch's haughty and condescending attitude toward those who disagree with him. Last term, when he and Jackson debated over the original meaning of the right to a jury trial, he treated her with scorn; while the two largely disagreed about history, Gorsuch framed her argument as a rejection of the Constitution in favor of her “personal views.” Even if he was right about the historical record (and he probably was ), there was no reason to burn down a strawman version of Jackson's counterpoint. Gorsuch, however, seems incapable of recognizing that his opponents' arguments might have merit. All too often, the justice's belief in his own infallibility leads him to treat good-faith disagreement with dismissive arrogance.

On Friday, Jackson had enough, and fired back at Gorsuch with full force. (On the same day, she accused the court of egregious corporate bias in a solo dissent; the justice has obviously decided that telling the truth is more important than appeasing her conservative colleagues.) It is too soon to tell whether the rift Stanley exposes is permanent; after all, at the end of the term, every member of the court resorts to blistering rhetoric as tempers flare. But this clash feels different—an unusually personal rupture over the legitimacy of Gorsuch and Jackson's approach to judging. What once seemed like shared ground is starting to look like an unbridgeable divide.

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