'Meeting of the minds' as Gorsuch and Jackson 'team up' against government overreach: reports

United States Supreme Court Justices Neil Gorsuch and Ketanji Brown Jackson have “teamed up” in a “meeting of the minds,” according to reports in Bloomberg Law, Slate and MSNBC’s Deadline: Legal Blog.

As Bloomberg Law reporter Lydia Wheeler notes, the foundation of Gorsuch and Jackson’s unlikely alliance appears to be “the rule of lenity” — a criminal law principle that states, “When a law is unclear or ambiguous, the court should apply it in a way that is most favorable to the defendant” and against the state, according to Cornell University’s Legal Information Institute.

As Gorsuch wrote in Bittner v. United States (an “unprecedented” 5–4 decision handed down in February with Jackson joining the majority opinion), “statutes imposing penalties are to be ‘construed strictly’ against the government and in favor of individuals.”

Mark Joseph Stern, writing for Slate, said Jackson’s concurrence in Bittner showed “a skepticism of government power that should cheer civil libertarians across the political spectrum.”

Jackson, Stern wrote, “was the only justice to join a key section of Gorsuch’s opinion endorsing special solicitude for federal defendants’ due process rights.”

Court watchers, Wheeler reports, “say the respective nominees of Donald Trump and Joe Biden have been collaborating most often in fights that push back against government power.”

Anthony Michael Kreis, an assistant professor at Georgia State University College of Law, told Bloomberg Law that Gorsuch’s “libertarian streak” and Jackson’s “civil rights-oriented streak” is a “meeting of the minds” — despite different motives, including Gorsuch’s desire “to undermine the power of the administrative state.”

In the case of Polselli v. IRS, Gorsuch and Jackson “teamed up on raising sort of fairness and due process type concerns in the IRS context,” Latham & Watkins partner Roman Martinez told Bloomberg Law.

That case, according to Bloomberg Tax, “[tested] the reach of privacy protections against the IRS’s power to demand bank account records without ever notifying account holders.”

“[Gorsuch and Jackson] were staking out ground to really protect the rights of taxpayers and emphasize the importance of notice and procedural due process,” Martinez said.

University of Virginia law professor Dan Ortiz told Bloomberg Law that Gorsuch and Jackson “are more willing than most of their colleagues to go beyond the minimal amount necessary to decide a case and offer advice when their interests align about what more should be said,” Wheeler reports.

“Gorsuch has been the one on the court for the last few years who’s been most interested in the rule of lenity and, as a former public defender, you can see that as being in Justice Jackson’s wheelhouse,” Ortiz said.

Per Bloomberg Law:

Over time, [Ortiz] said, it’ll be interesting to see whether their “jurisprudential friendship” yields any benefits in terms of moderating certain opinions down the road when Jackson and Gorsuch are the linchpins of a coalition of five.

“That’s where it very well may matter,” he said.

Pointing to a Thursday opinion in Tyler v. Hennepin County, MSNBC Legal Blog writer Jordan Rubin argued “Gorsuch and Jackson went out of their way to note their view that that part of the Constitution also protects people against excessive government intrusion in these types of cases.”

“We can engage in some educated speculation about what brought them together,” Rubin wrote. “Jackson’s rare experience as a former public defender, combined with what might be called Gorsuch’s libertarianism (though he’s been notably less skeptical of state power in, say, the death penalty context)."

Stern agrees, noting the examples of Gorsuch and Jackson teaming up “all point toward a suspicion of government overreach, though it’s too soon to say how consistently she’ll apply these views.”

"The one indubitable conclusion so far is that Jackson is not just a liberal but a civil libertarian, and whenever the government seeks to punish a citizen, it should never take her vote for granted,” Stern added.