Kagan turns on liberal ally Jackson with footnote jab over free speech

Justice Ketanji Brown Jackson drew fire from an unlikely colleague on Tuesday over her lone dissent in the Supreme Court’s 8-1 decision finding Colorado’s ban on so-called “conversion therapy” for minors violated free speech rights.

Fellow liberal Justice Elena Kagan criticized Jackson for failing to acknowledge case law that governs when speech can be regulated in the medical field, marking a rare public break between two justices typically aligned in cases centered on high-profile cultural issues. 

“Justice Jackson’s dissenting opinion claims that this is a small, or even nonexistent, category,” Kagan wrote in a footnote of a concurring opinion, which Justice Sonia Sotomayor joined. “But even her own opinion, when listing laws supposedly put at risk today, offers quite a few examples.”

Kagan, an Obama appointee, said Jackson’s view “rests on reimagining—and in that way collapsing—the well-settled distinction between viewpoint-based and other content-based speech restrictions.”

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The 8-1 decision on Tuesday arose from a lawsuit brought by Kaley Chiles, a licensed Christian therapist, who argued her conversations with youth clients were a form of protected speech. The Colorado government had said the conversations amounted to professional conduct that the state was allowed to regulate.

Jackson’s fiery 35-page dissent, which she read from the bench when the high court announced the opinion, was longer than the majority opinion and Kagan’s concurrence combined.

“Professional medical speech does not intersect with the marketplace of ideas: ‘In the context of medical practice we insist upon competence, not debate,’” Jackson, a Biden appointee wrote, later adding, “Treatment standards exist in America.”

Jackson issued an ominous warning about national implications of the case, as about two dozen other states have laws similar to Colorado’s and will now need to take into account the high court’s ruling.

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“Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned,” Jackson said. “Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want.”

One conservative lawyer on social media observed that Kagan seemed “exasperated” by Jackson, who has become known as a verbose justice inclined to tack on lengthy solo dissents to the majority’s opinions in prominent cases. Manhattan Institute’s Ilya Shapiro agreed.

“That should be a separate descriptor of an opinion: concurring, dissenting, expressing exasperation with Justice Jackson,” Shapiro wrote on X.

Kagan joined the eight justices in finding that the Colorado government erred in regulating Chiles’ practice because the state used a 2019 law that only banned therapists from counseling minors if the therapy entailed advising them on how to resist becoming transgender or gay. That amounted to restricting one viewpoint, in violation of the First Amendment, the majority said.

Kagan said that if the law were “content-based” rather than “viewpoint-based,” it would present less of a free speech problem.

“Because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward,” Kagan said. “It would, however, be less so if the law under review was content-based but viewpoint neutral.”

Jackson argued that Chiles was “not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional.”

The Supreme Court’s ruling was narrow, as Justice Neil Gorsuch explained in the majority opinion, as it directed the lower court to reexamine the Colorado law and ensure it did not interfere with Chiles’ speech rights.

“The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country,” Gorsuch wrote. “It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”