Mi Casa Su Casa—A Comment on Justice Amy Coney Barrett’s Unfortunate Critique of Justice Ketanji Brown Jackson

Max Stearns

Writing is hard. It’s all too easy to get caught up on one’s own prose, especially when tackling something controversial, inviting intense opposition. There’s a risk of defending in a manner that’s unkind, ungracious, gratuitous, or even offensive, however unintentionally, simply because in the moment, those disagreeing are pressing back hard.

One function law clerks play when things go well is stepping in at such moments. It doesn’t always happen, and when it does, it doesn’t always work. Justice Barrett’s unfortunate response to Justice Jackson’s separate dissent Trump v. Casa might have benefitted from such an attempt.

The case is among this past term’s most important. It held that a federal district court judge lacks the power to issue a universal injunction preventing the Trump administration from pressing its aggressive deportation policies including against those historically recognized as birthright citizens to parents not legally present in the United States. This post isn’t about the merits, but in the name of candor, I'll acknowledge that my personal views on this are generally in line with those expressed in Justice Sotomayor’s dissent. And it’s worth noting that in her majority opinion, Justice Barrett left open a potentially major unresolved issue that could cabin her otherwise broad ruling. District courts might hold the power to issue universal injunctions in some cases in which the state is the claimant.

Since Trump v. Casa was issued on June 27, 2025, a considerable number of social media commenters focused on an exchange between the Supreme Court’s two most recent appointees, both women, including the Court’s first Black woman. Justice Sotomayor wrote the principal dissent, but the attention is on Justice Barrett’s characterization of two sentences in Justice Jackson’s separate dissent. It’s important to quote that dissent’s opening sentence: “I agree with every word of JUSTICE SOTOMAYOR’s dissent.” The unusual phrasing matters.

I’ve seen quite a few on-line posts, eliciting many comments, construing Justice Barrett’s critique of Justice Jackson to imply the latter is lazy and perhaps even unqualified. I’m not suggesting that Justice Barrett intended the readings being bandied about on social media. I suspect she did not. Even so, her prose invited them, and such claims are not merely absurd; they are racist and insulting. This is something a thoughtful clerk could have foreseen, and having done so gently encouraged the Justice to respond to with modest editing.

To be clear, Justice Barrett is obviously fully entitled to disagree sharply with Justice Jackson or any other member of the Court. But her manner of doing so in this instance risked inviting the sort of offensive on-line commentary I've witnessed. Certainly President Trump never embraced “mi casa su casa.” But conveying such collegiality on the Supreme Court matters.

Let’s unpack this. Here's what Justice Jackson wrote:

To hear the majority tell it, this suit raises a mind-numbingly technical query: Are universal injunctions “sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act’” to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789? Ante, at 6. But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?

Here is Justice Barrett’s characterization of the preceding passage:

The principal dissent focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity. JUSTICE JACKSON, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever. Waving away attention to the limits on judicial power as a “mind-numbingly technical query,” post, at 3 (dissenting opinion), she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to “order everyone (including the Executive) to follow the law—full stop.” Post, at 2; see also post, at 10 (“[T]he function of the courts—both in theory and in practice—necessarily includes announcing what the law requires in . . . suits for the benefit of all who are protected by the Constitution, not merely doling out relief to injured private parties”); see also post, at 11, n. 3, 15. And, she warns, if courts lack the power to “require the Executive to adhere to law universally,” post, at 15, courts will leave a “gash in the basic tenets of our founding charter that could turn out to be a mortal wound,” post, at 12.

Later in her opinion, Justice Barrett added this:

JUSTICE JACKSON skips over that part. Because analyzing the governing statute involves boring “legalese,” post, at 3, she seeks to answer “a far more basic question of enormous practical significance: May a federal court in the United States of America order the Executive to follow the law?” Ibid. In other words, it is unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive. JUSTICE JACKSON would do well to heed her own admonition: “[E]veryone, from the President on down, is bound by law.” Ibid. That goes for judges too.

Justice Barrett is obviously entitled to criticize Justice Jackson. That’s not the problem. She also twisted Justice Jackson’s obvious meaning, and she added a word that distorted it. Justice Jackson didn’t say “boring legalise,” implying she lacked the stamina to do the work. She joined “every word” of Sotomayor’s opinion, which already did that work. She then wrote a separate dissent to make another point. Justices do that all the time. Justice Barrett obviously knows this.

In addition, Justice Jackson didn’t decline to respond to the merits of the historical and textual analysis because doing so would be “mind-numbingly technical.” What Jackson conveyed was that, in her view, the premise of Barrett’s opinion was mistaken because it substituted a larger question about whether the federal judiciary could cabin the President’s deliberate disregard of a long accepted constitutional mandate based on a disputed, and yes, mind-numbingly technical, alternative framing that involves comparing an English court of equity to a congressionally created Article III court.

Again, my purpose here isn’t to resolve contested and complex legal issues. That’s not because they are too difficult, too technical, too boring, or mind-numbing. Rather, it’s to point out that obviously none of that was true for Justice Jackson either. And Justice Barrett had to have known that.

As I previously noted, I’m certainly not claiming Justice Barrett intended or would support the offensive social media posts I’m seeing that grew out of her critique of Justice Jackson. My strong intuition is that she did not and would not. But a Supreme Court Justice has the responsibility to avoid problematic invitations to insult a colleague that way. And a wise clerk might have helped by walking into the boss’s chambers, draft in hand, sitting down, and saying, “Justice Barrett, would you mind if we chatted about a passage or two in this opinion that, on reflection, you might agree is possibly troublesome?”

Oh, to live in that more welcoming world. Mi casa su casa.

[Special thanks to Professor Guha Krishnamurthi and Professor Eric Segall for helpful comments on an earlier draft.]