We’ve been awarding our “Dishonorable Judicial Conduct Award” for several months now to both federal district court and U.S. appeals court judges. But now we have finally reached the U.S. Supreme Court and its newest member, Justice Ketanji Brown Jackson, for her lone dissent in Chiles v. Salazar.
Jackson seems determined to put her past behind her, or at least some of the embarrassing things she said (for her liberal supporters) at her March 2022 confirmation hearing. Her lone dissent in Chiles v. Salazar is the latest stop in her I-didn’t-really-mean-it tour and earns her our Dishonorable Conduct Award for May.
When Joe Biden nominated Jackson to the U.S. Court of Appeals for the D.C. Circuit in April 2021, she refused to tell the Senate Judiciary Committee much about her approach to judging. Not so a year later, when Biden tapped her to replace Justice Stephen Breyer. By comparison, she was downright chatty: “I am focusing,” she explained, “on original public meaning because I'm constrained to interpret the text.” She even said that “the Constitution is fixed in its meaning.”
Liberals had fought tooth-and-nail against Republican nominees who said such things, but, perhaps not so strangely, remained enthusiastic Jacksonites despite her supposed support for originalism. The explanation is obvious: Jackson followed the script her minders and sherpas prepared in order to sound reasoned, perhaps even “moderate.” If she really believed what she said then, you’d think she might use such language in a few opinions, but you’d be disappointed. Instead, she seems on a mission to prove that Justice Jackson isn’t anything like Nominee Jackson.
Which brings us to Chiles v. Salazar.
In 2019, Colorado passed a censorship law prohibiting so-called “conversion therapy” for minors, a very broad label that includes “any practice or treatment” by licensed counselors attempting to change any behaviors, expressions, attractions, or feelings toward individuals of the same sex. At the same time, the law allows practices that provide acceptance, support, understanding, and assistance for someone’s sexual orientation, gender identity, and even gender transition. Anyone can file a complaint against a counselor suspected of crossing the state’s line, initiating a process that can result in license revocation and loss of livelihood.
Kelsey Chiles is a licensed counselor who helps clients address issues including gender dysphoria and sexuality, and her counseling is based on her clients’ goals, values, and beliefs. Some are content with their sexual orientation or gender identity, others are not. Under the law, however, Chiles could help the first group but could not say a single word or provide any counseling to help the second group.
She argued that Colorado violated the First Amendment by prescribing the content of her professional speech and dictating the viewpoint she is allowed to express. To avoid the First Amendment, Colorado pretended that speech is “conduct” and, therefore, claimed the power to regulate it. There’s a strange consistency here. Just as gender warriors claim that someone needs only to “identify” as another sex to actually be that sex, so Colorado claimed that simply calling speech “conduct” makes it so.
Speech, however, is not simply part of what Chiles does; it’s all she does. Despite what the label “conversion therapy” evokes (no doubt intentionally), she uses no physical methods, medical devices, or medication. She listens, counsels, and advises her clients. Just talk. The Supreme Court agreed, with Justice Neil Gorsuch writing the opinion, joined by all of the justices with just one exception – Ketanji Brown Jackson.
Chiles’ speech, Gorsuch wrote, “does not become conduct just because the State may call it that.” None of this is new – it’s a straightforward application of some of the most well-established constitutional principles to a very simple set of facts. Colorado tells Chiles what she can say when she talks about certain topics and threatens her professional status if she disobeys.
Jackson dissented, trying the same tactic as Colorado, arguing that the state may dictate what Chiles says simply by branding disfavored speech or an undesirable viewpoint as “substandard care.” This radical position ignores virtually everything the Supreme Court has ever said about free speech. The Court has been zealously protective, even deeming First Amendment rights to be in a “preferred position,” while Jackson is shockingly dismissive of protected speech.
This case is not even a close call – Chiles’s speech is not part of the therapy she offers; it is the whole thing.
Jackson took extreme measures – and used misleading semantics – to avoid the actual facts. She referred to “treatment-related speech” and insisted that Chiles engages in a “therapy modality” that only “incidentally” involves speech. She raised the false flag of “aversive therapeutic modalities” such as “inducing nausea, vomiting, or paralysis in patients or subjecting them to severe electric shocks.”
She refused to acknowledge what the majority noted up front, that Chiles herself condemns such practices. Those are indeed examples of conduct, fundamentally different than what Chiles does.
Finally, Jackson cited the Supreme Court’s 1992 decision in Planned Parenthood v. Casey no less than 23 times. But the Supreme Court overruled Casey four years ago.
Jackson’s position was so extreme that no other justice, not even liberals Sonia Sotomayor and Elena Kagan, would join her. According to scotusstats.com, Jackson/Sotomayor/Kagan is the most frequent combination of three justices, at 89%, since Jackson joined the Court. In fact, this trio comprised the minority in more than half of the Court’s 6-3 decisions during that period. This time, however, Jackson went too far even for them.
Comparing the 2022 nominee with the justice makes clear that one of these is not like the other. The real one easily earns this month’s Dishonorable Conduct Award for refusing to uphold the First Amendment and the Constitution.
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