Gorsuch, Jackson Form Unusual Alliance Against Government Power

Neil Gorsuch and Ketanji Brown Jackson are justices on opposite sides of the Supreme Court’s ideological line who have teamed up in four opinions so far this term.

The duo has stood alone in one majority decision and three concurring opinions, including in Thursday’s Tyler v. Hennepin County. Gorsuch wrote separately to agree with the court’s decision to side with a woman who claimed her local government unconstitutionally profited when it sold her home to settle her tax debt and kept the surplus proceeds. Jackson was the only other justice to sign onto that concurrence.

Court watchers say the respective nominees of Donald Trump and Joe Biden have been collaborating most often in fights that push back against government power. Protecting the little guy appeals to Gorsuch’s libertarian streak and Jackson’s civil rights oriented streak, said Anthony Michael Kreis, an assistant professor at Georgia State University College of Law.

“There’s this meeting of the minds,” he said.

Their motives, however, are very different, Kreis said. Unlike Jackson, Gorsuch wants to undermine the power of the administrative state, he said.

Aligned Interests

Latham & Watkins’ partner Roman Martinez also noticed the duo’s support for the underdog in Polselli v. Internal Revenue Service. In that case announced May 18, it was Gorsuch who joined Jackson when she wrote separately to agree the IRS doesn’t have to notify third parties when it seeks bank records to aid in tax collection.

Even though she sided with the majority, Jackson wrote separately to note that the IRS’ no-notice powers are limited.

“The Polselli case is one where she and Gorsuch teamed up on raising sort of fairness and due process type concerns in the IRS context,” Martinez said in an interview on “Cases and Controversies,” Bloomberg Law’s Supreme Court podcast. “They were staking out ground to really protect the rights of taxpayers and emphasize the importance of notice and procedural due process.”

When the court reined in federal fines for taxpayers who fail to report foreign bank accounts in February, Jackson was the only justice to join Gorsuch’s majority ruling in full. In Bittner v. United States, Gorsuch noted that under the rule of lenity, “statutes imposing penalties are to be ‘construed strictly’ against the government and in favor of individuals.”

Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh were with him on every aspect of his decision except this one.

Offering Advice

Dan Ortiz, a University of Virginia law professor, said 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.

“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,” he said.

The same was true, he said, when the court sided with a photographer who claimed Andy Warhol had violated her copyright when he used her work to make silkscreen portraits of the musician Prince, in Andy Warhol Foundation v. Goldsmith.

In a concurring opinion in the case May 18 that Jackson again joined alone, Gorsuch discussed the purpose for the works at issue, which suggests “he wants to decide a bigger theoretical issue that wasn’t quite necessary to decide the case,” Ortiz said.

Though it’s unusual to see a liberal and a conservative on the court routinely team up in concurring opinions, it’s not unheard of. That’s why Kreis cautioned against reading too much into it.

Over time, he 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.

—With assistance from Kimberly Robinson.