Commentary: Big Tent Ideas

No Justice Jackson, That’s Not The Role Of The Supreme Court

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With all the high-profile Supreme Court decisions during the 2025-26 term, it was easy to overlook FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. It might appear unremarkable at first glance, holding that Section 47(b) of the Investment Company Act does not provide for private lawsuits to rescind certain contracts.

But tucked away in Justice Ketanji Brown Jackson’s dissent is a single sentence that reveals her radical judicial philosophy.

This isn’t the first time Jackson has described her job in unusual ways. During a book tour last year, for example, she said: “I just feel that I have a wonderful opportunity to tell people in my opinions how I feel about the issues, and that’s what I try to do.”

In FS Credit, however, she described not just her role as an individual justice, but the Supreme Court’s role as an institution. “The Court’s proper role,” she wrote, “is to give effect to the will of the people.”

That may have a democratic ring to it, but that’s not what America’s founders believed. In the system of government they established, the legislative branch, not the judicial, gives effect to the people’s will.

The House of Representatives, wrote James Madison in The Federalist No.52, has an “immediate dependence on, and an intimate sympathy with, the people.” And, per The Federalist No.63, the Senate takes its own look at legislation in a more deliberate way. This is how Congress translates the people’s current will into law.

The judiciary’s connection to the “will of the people” is very different. The “judicial power” granted by the Constitution is the power to interpret and apply law to settle legal disputes.

As the Supreme Court held only a few years after its ratification, the Constitution “contains the permanent will of the people.” The judiciary gives effect to the people’s permanent will by interpreting the Constitution to mean what the people meant when they made the Constitution law in the first place.

There was a moment during Jackson’s 2022 confirmation hearing when she at least sounded like she understood this. “The adherence to text is a constraint on my authority,” she told the Senate. “I am focusing on the original public meaning [of the Constitution] because I’m constrained to interpret the text.”

In fact, she used the phrase “original public meaning” multiple times. Few people at the time believed that she really meant it, and her statement in FS Credit suggests that it was just confirmation spin.

In her dissent, Jackson started by looking at the text, structure, and statutory history of Section 47(b). The Supreme Court has repeatedly said that “where…the words of the statute are unambiguous, the judicial inquiry is complete.” Courts “may not resort to extrinsic evidence to interpret them.” Yet that is exactly what Jackson tried to do. House and Senate committee reports, Jackson claimed, show that Congress wanted courts to recognize a private right to sue – even though Congress did not say so in the statute it passed.

Items from the legislative process, such as committee reports, might say something about what some legislators, or a single committee, or only some legislative staffers, might have thought. But as the majority in FS Credit, put it, “Congress expresses itself as a body through the text it enacts.” The views of a congressional committee “are not the law.”

In Marbury v. Madison, the Supreme Court famously said that “it is emphatically the duty of the Judicial Department to say what the law is.”

In a case like FS Credit, the law is the text Congress enacted, interpreted to mean what Congress meant. A judge has no authority to use something else in order to decide a case the way she prefers. And using “the will of the people” as a smokescreen cannot change that.

Jackson’s invocation of “original public meaning” and constraints on judicial authority during her confirmation hearing described how the judiciary is designed to function. But her dissent in FS Credit shows that, as Texas Republican Sen. Ted Cruz once told a nominee, it was just a “confirmation-day conversion.”

The Court does not have the power to browse through the “will of the people” until it finds whatever it can use to do whatever it wants.

Tom Jipping is a senior legal fellow at the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom Foundation.

Daniel Mares is a legal intern in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom Foundation.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.