Justice Elena Kagan, one of the three liberal members of the Supreme Court and an Obama appointee, used a sharp footnote in her concurring opinion on Tuesday to tear apart the reasoning of Justice Ketanji Brown Jackson’s lone dissent in an 8-1 ruling that struck down Colorado’s ban on so-called “conversion therapy” for minors. Kagan told Jackson that her own dissent was wrong, which hurt the most.
Licensed Christian therapist Kaley Chiles sued the state of Colorado to find out if a 2019 law that made it illegal for counselors to tell minors how to avoid becoming transgender or gay violated the First Amendment.
Eight judges said it did. Jackson was the only one who disagreed, and he read a 35-page dissent from the bench, which caught the attention of legal experts from all sides of the political spectrum.
But the sharpest criticism came not from the Court’s conservative majority. It came from Kagan herself, joined by Justice Sonia Sotomayor, who sided with the majority while writing separately to explain their reasoning.
In a footnote, Kagan wrote that Jackson’s dissent “claims that this is a small, or even nonexistent, category,” then added: “But even her own opinion, when listing laws supposedly put at risk today, offers quite a few examples.”
The footnote was more than a technicality. Kagan accused Jackson of a fundamental analytical error, writing that her dissent “rests on reimagining, and in that way collapsing, the well-settled distinction between viewpoint-based and other content-based speech restrictions.”
Jackson was trying to blur a line that the Court has known about for a long time, but Kagan wasn’t going to let him.
Kagan’s agreement stressed that she thought the Colorado law didn’t work because it took sides.
She said, “The State has suppressed one side of a debate while helping the other,” and she called the constitutional issue “straightforward.” She also said that the case “would be less so if the law being looked at was based on content but not on viewpoint.”
Kagan cared about that difference. In her opinion, Jackson had erased it.
Jackson has had problems with other high court judges before. But a public footnote from another liberal is different from disagreement across the ideological aisle.
Ilya Shapiro of the Manhattan Institute captured the mood among legal commentators. He posted on X that Kagan’s opinion deserved its own label: “That should be a separate descriptor of an opinion: concurring, dissenting, expressing exasperation with Justice Jackson.”
Jackson framed the dispute as a question about medical regulation, not free expression. She argued that Chiles was “not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional.”
In her telling, the Colorado law simply held therapists to professional treatment standards.
“Professional medical speech does not intersect with the marketplace of ideas: ‘In the context of medical practice, we insist upon competence, not debate.’”
That was Jackson’s core claim. She added, “Treatment standards exist in America.” And she warned of broader consequences, writing: “Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned.”
Jackson also argued that the ruling threatened the foundation of medical licensing itself: “Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want.”
Jackson’s problem was that the other people on the bench didn’t agree with him. Not the right-wingers. Not Kagan. Not Sotomayor. The person Biden chose stood alone.
Justice Neil Gorsuch wrote the majority opinion and used broad First Amendment language to explain the decision.
Gorsuch was with Chief Justice John Roberts and Justices Thomas, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett. The lineup itself told a story: the two remaining liberals on the Court joined every conservative to say that Colorado’s position was wrong.
Gorsuch wrote that the law did more than regulate the content of Chiles’s speech, “It goes a step further, prescribing what views she may and may not express.” He cast the ruling in terms of fundamental liberty:
“The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”
Jackson’s dissent agreed with almost everything Colorado said, saying that states should still be able to control medical and mental health care even when speech is involved.
The 8-1 vote, though, shows that the Court didn’t find that argument very convincing at all.
