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Neil Gorsuch and Ketanji Brown Jackson, justices from opposite ends of the ideological spectrum on the Supreme Court, have formed an unexpected alliance, joining forces in four opinions during the current term. Their collaboration has been particularly evident in cases challenging government power, where they have stood together in majority decisions and concurring opinions. One such instance was the recent Tyler v. Hennepin County case, in which Gorsuch penned a separate opinion concurring with the court’s decision to support a woman’s claim that her local government violated the Constitution by profiting from the sale of her home to settle tax debt and retaining the surplus proceeds. Jackson was the sole justice to sign onto that concurrence.
Observers of the Court have noted that the nominees of former President Donald Trump (Gorsuch) and President Joe Biden (Jackson) have frequently united in battles against government overreach. This alignment can be attributed to Gorsuch’s libertarian inclinations, which emphasize the protection of individual rights, and Jackson’s focus on civil rights. Anthony Michael Kreis, an assistant professor at Georgia State University College of Law, suggests that their shared commitment to safeguarding the interests of marginalized individuals contributes to their common ground.
However, Kreis points out that their motivations differ significantly. While Jackson is primarily concerned with defending civil rights, Gorsuch seeks to undermine the administrative state’s power. This contrast is evident in cases such as Polselli v. Internal Revenue Service, where Gorsuch and Jackson supported the underdog. In this case, Gorsuch joined Jackson in asserting that the IRS is not obligated to notify third parties when seeking bank records for tax collection purposes. Although Jackson concurred with the majority opinion, she wrote a separate opinion underscoring the limitations on the IRS’s authority and the importance of fairness and due process. Roman Martinez, a partner at Latham & Watkins, also recognized the duo’s commitment to protecting taxpayer rights in this case, highlighting their joint emphasis on notice and procedural due process.
Another notable instance of their alliance occurred in Bittner v. United States, where Jackson was the only justice to fully join Gorsuch’s majority ruling. The case involved the reduction of federal fines for taxpayers who fail to report foreign bank accounts. Gorsuch invoked the rule of lenity, arguing that statutes imposing penalties should be construed strictly against the government and in favor of individuals. Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh joined Gorsuch on all aspects of the decision except this particular point.
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Legal experts have also observed that Gorsuch and Jackson are more inclined than their colleagues to go beyond the essential requirements of a case and offer additional guidance. Dan Ortiz, a law professor at the University of Virginia, notes that Gorsuch’s interest in the rule of lenity, combined with Jackson’s background as a former public defender, contributes to their shared approach. Ortiz cites the Andy Warhol Foundation v. Goldsmith case as an example. In a concurring opinion, Gorsuch discussed the purpose behind the works in question, suggesting a desire to address broader theoretical issues beyond what was strictly necessary to decide the case.
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While it is uncommon for justices with differing ideologies to regularly team up in concurring opinions, it is not unprecedented. Consequently, Kreis advises caution against reading too much into their alliance. However, he speculates that their “jurisprudential friendship” may have potential implications for moderating certain opinions in the future, especially when Gorsuch and Jackson become pivotal members of a coalition of five on the Court.
The unexpected alliance between Neil Gorsuch and Ketanji Brown Jackson on the Supreme Court represents a convergence of interests in cases challenging government power. Despite their ideological differences, the justices’ collaboration showcases their shared commitment to protecting individual rights and promoting fairness. While the long-term impact of their partnership remains to be seen, it presents an intriguing dynamic within the Court’s decision-making process.
