By Richard Lempert
“The plain language of the statute was clearly wiped out by you because you disagreed with the Trump administration. That to me is exhibit A of judicial activism,” Sen. Lindsey Graham.
Sen. Graham is referring to Judge Jackson’s decision in Make the Road New York v. McAleenan. This case, perhaps more than any other, characterizes Jackson’s approach to judging and the fine distinctions that inform her analyses. Reading it undercuts rather than reinforces Graham’s claim.
Make the Road grew out of a change in the administrative rules specifying which undocumented immigrants could be subject to expedited removal under the Immigration and Naturalization Act (INA).
Expedited removal eliminates procedural protections and appeal rights that undocumented immigrants enjoy in regular removal hearings. In a typical expedited case, deportation occurs less than two weeks after apprehension. Although the INS allows DHS to provide for the expedited removal of any undocumented immigrant who has been in this country for less than two years, until 2019, when the rules implementing the Act were amended, most immigrants could not be subject to expedited removal unless they were apprehended within 14 days of their entry at a place that was no more than 100 miles from the nearest land border. Expedited removal from the country was thus reserved for non-stakeholders. The revised rules allow the government to use expedited proceedings regardless of where an undocumented immigrant is apprehended, provided the immigrant has not lived continuously in the United States for more than two years.
Congress, when it enacted this legislation, intended to give the Executive (originally the Attorney General, and later the Secretary of the Department of Homeland Security) almost unreviewable discretion over how the law is implemented, so long as the statute’s limitations are honored. Hence, it provided, with one exception, that no court has jurisdiction to review the procedures and policies adopted to implement the legislation. Judicial review is allowed if a party asserts that adopted regulations are unconstitutional, inconsistent with the overall statute, or otherwise in violation of the law. Soon after the revised rules were published, three immigrant-rights organizations sued to enjoin their enforcement, and the case was assigned to Judge Jackson.
The plaintiffs had serious hurdles to overcome, even after they succeeded in showing that they had standing to represent immigrant interests. The INS is clear; so long as the DHS Secretary acts within statutory limits and does not violate the constitution or existing law, no court has jurisdiction to hear challenges to the Secretary’s judgment. Reading the statute this way, Judge Jackson concluded that her jurisdiction did not extend to reviewing the substance of the rules the Secretary enacted. However, Jackson also found that existing law, in this case the Administrative Procedure Act (APA), applied to DHS rule making, and that DHS had failed to comply with the APA’s strictures when enacting the amended rules. She did not read the INA as withdrawing jurisdiction when it was the method of rulemaking that was challenged.
The government argued strenuously against the applicability of the APA, pointing out that the APA does not govern actions “committed to agency discretion by law.” Judge Jackson agreed that this clause meant that the APA could not be used to question what the enacted rules provided, but she held that the methods used to enact rules could be questioned because the INA did not say that they were committed to agency discretion. With this understanding, she found the rules invalid because in enacting them the Secretary failed to follow APA-mandated notice and comment procedures. Jackson is candid about her views,
“[A]n administrative agency that just plows ahead and announces a new rule, without taking the reasonably foreseeable potential negative impacts of the policy determination into account (as DHS appears to have done) might as well have picked its policy out of a hat.”
These views may have affected her reading of what Congress intended, but it is her reading of Congressional intent and not a desire for a certain outcome that best explains her decision.
Judge Jackson was reversed on appeal. The decision reversing her agreed, however, with most of her analysis. The appellate majority reversed because having plenary discretion meant that DHS was not required to consider comments received, nor was there a record to be developed for judicial review. From this they concluded that the APA’s notice and comment process had “no work to do,” and applying it would be a meaningless formality. Nowhere did they suggest that Jackson overreached or was result oriented. Indeed, they acknowledged that her ruling could be supported by existing precedent.
We don’t know everything that motivated Judge Jackson’s Make the Road decision, but we do know how she approached it. She carefully reviewed the claims made by the plaintiffs and each of the Government’s arguments. She parsed the language of the relevant statutes, one time consulting Black’s Law Dictionary for the precise definition of a term. She looked in detail at relevant precedent, explaining why some precedent was not on point while other precedent should be respected. She made fine distinctions rooted in law and precedent. Although she found for the plaintiffs, she rejected many of their arguments, intimating that she did not think the INA provided any basis for jurisdiction and barely nodding at their constitutional objections. She took more than 70 pages to lay out her reasoning.
Judge Jackson’s opinion in Make the Road shares much, including its length, with many of her judicial opinions. Reading these opinions, one cannot help but be struck by the author’s intelligence, care and the clarity with which she addresses complex issues of jurisdiction and procedure, matters that are uncommonly common in cases that reach the federal courts for the District of Columbia. Her important opinions are lengthy because she lays out in greater detail than most judges the reasoning behind her legal conclusions. She confronts and resolves virtually every issue raised by both claimants and defendants, often giving arguments more serious consideration than, on my reading, they deserve. I, for one, was blown away by the quality of the opinions I read.
In her confirmation hearing, when pressed for her judicial philosophy, Judge Jackson pointed not to a particular perspective on the law but to a perspective on legal analysis. Her judicial philosophy, she said, could be found in the way she approached judging. This response might seem like ducking the inquiry, and it would be for some judges. But coming from Judge Jackson, it is a fair response. The tools she applies in reaching her decisions are focused attention on the details of cases and claims, a keen analytic mind, careful reading of statutes and precedent, occasional references to law dictionaries when meanings are disputed, and a respect for procedural requirements that limit judicial authority. The latter is evidenced in her many brief opinions.
Regardless of sympathies she may have developed for criminal defendants during her public defender days, in case after case, with barely a word, Jackson dismisses prisoner lawsuits for lack of jurisdiction or procedural shortcomings.
All judges are influenced by their personal beliefs and values, but influence can be manifested in different ways. A judge’s political, religious, or other preferences might lead a judge to approach a case with a desired outcome in mind and then to search for a reasoning that supports that outcome. When this is not adroitly done, lawyers say that the decision “stinks of the lamp,” referring to a time in the 19th century when a popular image saw lawyers writing briefs late at night by the light of smoky oil lamps, trying to justify legally questionable outcomes that favored their clients. Too many judicial opinions, including some by Supreme Court Justices, have the kinds of convoluted reasoning, or are sufficiently inconsistent with how the same author has treated prior claims, that it is fair to conclude that they stink of the lamp.
Personal beliefs and outcomes need not, however, determine outcomes, even if they affect how a judge views the facts of the case or the legal interpretations she favors. It is possible that in Make the Road, Judge Jackson’s reading of how the APA and the INA interacted was influenced by a desire to protect immigrants from expedited deportation or even a hostility toward Trump and his policies, but nothing about Jackson’s opinion supports Sen. Graham’s assumption that only liberal biases can explain her ruling. Graham ignores how close the case was. Not only did two of the three appellate court judges agree with Jackson’s reading of the relevant laws and precedent, but also their reason for reversing her was novel. If personal values influenced Jackson’s legal analysis, the most likely candidate is a belief that people should not be harmed by arbitrary administrative rule making, as captured in the sentence about picking “policy out of a hat” that I quote above. This value favors neither party nor any President.
There is, however, an even better reason to reject Sen. Graham’s characterization of Judge Jackson’s motivations.
A number of Jackson’s decisions are not what one would expect if liberal views rather than the law determined her holdings.
Consider, for example, Center for Biological Diversity v McAleenan. In this case, animal rights and conservation organizations sued to stop construction of 20 miles of border wall which, they claimed, would “have numerous negative impacts on the wildlife, plants and sensitive biological habitats on or near the proposed” project site. They alleged that the DHS secretary’s waiver of a variety of statutes, including the Endangered Species Act and the National Environmental Policy Act, was ultra vires because it exceeded the authority given him in legislation authorizing wall construction. Judge Jackson dismissed the lawsuit. She wrote, “Congress has unambiguously precluded all non-constitutional legal challenges to the exercise of the DHS Secretary’s waiver authority, including ultra vires claims,” and she rejected the plaintiff’s constitutional claims based on precedent. Judge Jackson could hardly have come down more strongly on the side of the Trump Administration.
In another case (Am. Fed’n of Gov’y Emps., AFL:-CIO v.Trump) where Jackson was later reversed on a jurisdictional issue, her substantive judgments were mixed. She upheld some claims that the unions had brought against Trump directives that allegedly interfered with Congressionally authorized collective bargaining and rejected others. Interestingly, the judge who wrote the opinion reversing Jackson’s decision in this case was the Bush-appointed judge, Thomas Griffith who introduced Jackson at her confirmation hearing, telling the assembled Senators “Judge Jackson is an independent jurist who adjudicates based on the facts and the law and not as a partisan.” Further examples of case outcomes that would not have been predicted based on assumptions of political partisanship can be found in a collection summarizing Jackson’s national security related decisions.
While it is fair to take Jackson’s statements at face value when she says her judicial philosophy lies mainly in her methods, this tells us less than we might want to know about how she will decide as a Supreme Court Justice. As a District Court judge, the judicial norms reflected in her methods required her to accept what she saw as binding precedent, whether or not she agreed with those decisions, and her holdings were constrained by the possibility of reversal on appeal. Indeed, the latter possibility may go a good way toward explaining the excruciating detail that characterizes many of her opinions. My guess is that she wanted appellate judges to understand and to contend with the close attention to law and language that led her to decide as she did. But as a Supreme Court Justice, she will be setting or reversing precedent, and there is no higher court that will review her opinions.
Like all justices, we can expect that Jackson’s values, including political ones, will play a greater role in determining her decisions than they have during her time to date on the bench. But Jackson’s values are not entirely political, and unlike some current Justices, nothing about her career suggests she is an ideologue who takes the bench with the aim of achieving partisan goals. She can still be expected to read laws closely and to respect Congressional and Executive prerogatives where the Constitution vests power in those branches. When Jackson says she believes judges should “stay in their lane,” there is every reason to believe she is sincere. We can also expect that Jackson will take Supreme Court precedent seriously, and that to the extent her decisions arguably deviate from precedent, she will explain in detail why the case she is deciding falls outside the confines of prior precedent or why a precedent should be overruled. Indeed, whatever influence she has as a member of a three-judge liberal minority is likely to lie in how she thinks and writes about the cases she hears. The quality of her analyses and how they are likely to resonate with Court watchers may affect how the Court’s more conservative justices approach cases, and perhaps how they vote. Even when outcomes are unaffected, the language of opinions justifying them may change and be reduced in scope.
Judge Jackson’s confirmation hearings were revealing in how little attention her fiercest opponents devoted to matters of the kind the Supreme Court deals with. Her sentences in child pornography cases received the most attention even though Justices do not sentence criminals, and attention was called to a few books in the Georgetown Day School library that Jackson, as a GDS board member, had no reason to know of. Coupled with these objections were repeated racist dog whistles, disguised as inquiries into Jackson’s views of Critical Race Theory, a perspective that during ten years on the bench never informed Jackson’s judgments, and in her public speeches was referenced only once as part of a laundry list of perspectives that academics bring to bear on social problems.
I take from these Republican attacks two lessons. First, after reviewing Jackson’s opinions, even her most conservative critics appreciated their quality and how little in them justified opposing Jackson’s nomination. Second, those launching the child pornography, books in the library and related attacks knew that they could not credibly lodge objections to her appointment on grounds of competence, temperament, or close-mindedness. They launched the attacks they did both to throw red meat at the Trumpian base and to justify votes to oppose Jackson that they would have cast no matter what Jackson’s opinions, or the hearing revealed.
Another racist dog whistle that surfaced almost as soon as Biden named Jackson as his choice for the Court, was Tucker Carlson’s claim that the nation had a right to know Jackson’s LSAT score, the implication being that maybe she wasn’t all that smart. This charge notably did not figure in Jackson’s confirmation hearing. It couldn’t. One only has to read partway into almost any of Jackson’s lengthy opinions to be dazzled by the author’s legal understandings and intelligence. Even some of Jackson’s most committed Republican opponents felt a need to acknowledge her intelligence before launching their attacks. In a way the largely irrelevant lines of attack that Republicans used against Jackson are the best testimony to what her judicial career to date tells us about her capacity to serve on the Court. There is every reason to believe that she will be an outstanding Justice.
 The statute established the two-year cutoff point. The amended rules allow expedited removal to the extent that the INA allows.
 Judge Jackson in Make the Road is ruling on a motion for a preliminary injunction. She is not rendering a final decision in the case, and she might rule differently after hearing all the evidence or thinking further about the competing arguments. But a change of mind is unlikely. This, together with her belief that the United States would suffer no great harm if the legality of the rules were upheld but their implementation delayed, while immigrants affected by the rule would suffer irreparable harm if invalid rules were implemented, explains her decision to grant the preliminary injunction.
 The panel’s third member, Judge Neomi Rao, would have reversed on jurisdictional; grounds.
 The majority opinion is a cynical one that arguably should not have carried the day. It presumes that because the Secretary did not have to consider comments in exercising his discretion, he would not do so no matter what information he received about the workability of the proposed rules or the hardships they would cause. Practically, the majority was almost certainly correct. The Secretary’s rules were ones that President Trump had wanted DHS to issue almost from the time he took office, but the view that the Secretary would in good faith consider comments even if he was free to ignore them is more consistent with the way courts presume administrative agents act. A judge ignoring the politics of the situation could reasonably decide as Jackson did.