Ahead of arguments over President Joe Biden’s student debt relief efforts on Tuesday, Biden’s Supreme Court appointee, Ketanji Brown Jackson, issued her first majority opinion.
The opinion didn’t come in a closely watched case like the debt dispute, but there were still significant financial interests at stake — hundreds of millions of dollars, in fact. Jackson’s opinion came in a rather technical case called Delaware v. Pennsylvania, where Delaware and several states fought over who gets unclaimed funds from uncashed, prepaid MoneyGram checks. Was it the other states, where the checks were purchased, or Delaware, where MoneyGram is incorporated? The answer, per Jackson’s opinion, is the other states.
And though obviously an important dispute to the states involved, there’s arguably something more interesting lurking in the opinion, which was almost unanimous. The reason it wasn’t might not have mattered much to the bottom line, but it highlights a long-running dispute on the court about the use of “legislative history” — meaning, looking to the background and purpose that went into a law, rather than just looking at the law itself. The practice has divided conservatives and liberals over the years, with conservatives avoiding legislative history and liberals embracing it. For example, Jackson’s Democratic predecessor, the retired Justice Stephen Breyer, was a proponent of legislative history, while the late arch-conservative Justice Antonin Scalia opposed it.
In Delaware v. Pennsylvania, however, it wasn’t a completely partisan divided. No one wrote a dissent from Jackson’s opinion, but Republican-appointed Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett declined to join the part of Jackson’s opinion that used legislative history to support her conclusion.
Notably, Chief Justice John Roberts and Justice Brett Kavanaugh joined the legislative history portion of Jackson’s opinion, making that part of Tuesday’s ruling the same lineup as last week’s 5-4 death penalty case, where Roberts and Kavanaugh formed a majority with the three Democratic appointees in favor of a death row prisoner.
And just as the death penalty case didn’t signal a revolution in the law (rather, it showed the absurdity of Arizona’s position in that capital case), the 5-4 split in this one section of Delaware v. Pennsylvania doesn’t likely signal a revolution in statutory interpretation, either. But, like the other opinion Tuesday, which featured an even more unusual split — Gorsuch wrote the opinion in that case, joined by Jackson and partially by Roberts, Alito and Kavanaugh, with Barrett, Thomas, Kagan and Sotomayor dissenting — it reminds us that the justices can form some notable lineups, especially in the less overtly political cases. As we head toward the end of the term and the resolution of the court’s most contentious disputes, we can expect to see Jackson on the dissenting side of these divides.
