Liberal Justices Baffled By Ketanji Brown Jackson’s Solo Dissent In ‘Textbook’ Free Speech Case

Justice Ketanji Brown Jackson couldn’t get a single colleague to join her dissent warning of “catastrophic” fallout from upholding a Christian counselor’s free speech rights.

The Supreme Court found 8-1 Tuesday that Colorado’s ban on “conversion therapy” was viewpoint discrimination against Kasey Chiles, who was barred under the law from offering talk therapy encouraging gender-confused kids to feel comfortable in their bodies.

“Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned,” Jackson wrote in her 34-page solo dissent.

“It is baffling that we could now be standing on the edge of a precipitous drop in the quality of healthcare services in America,” Jackson wrote. “But the Court sees fit to bring us one step closer to that fate today. Stranger still is the fact that this possibility looms in the 21st century—given what science now enables us to know about medical conditions and treatments, what our cases say, and what we all should have learned by now from history.”

While Jackson worried the decision would open the door to unraveling the entire medical system, Justice Elena Kagan called her out for “reimagining” settled First Amendment law.

First Amendment protections apply no matter what view the state takes, Kagan noted in a concurring opinion joined by Justice Sonia Sotomayor.

“Consider a hypothetical law that is the mirror image of Colorado’s,” she wrote. “Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way.”

Kagan, who called Chiles’ case a “textbook” example of viewpoint discrimination, pointed out the court’s opinion does not address “content-based but viewpoint-neutral laws.”

“JUSTICE JACKSON’s dissenting opinion claims that this is a small, or even nonexistent, category,” Kagan wrote. “But even her own opinion, when listing laws supposedly put at risk today, offers quite a few examples. Her view to the contrary rests on reimagining—and in that way collapsing—the well-settled distinction between viewpoint-based and other content-based speech restrictions.”

The decision could have “potential long-term and disastrous implications,” the Justice speculated.

“[T]o be completely frank, no one knows what will happen now,” she wrote. “This decision might make speech-only therapies and other medical treatments involving practitioner speech effectively unregulatable—not to be reached via licensing standards, medical-malpractice liability, or any other means of state control. Who knows? Certainly not the majority.”

Jackson based her argument on what she called a “consensus” from medical organizations concluding that “conversion therapy” is harmful.

“Ultimately, scientific evidence supports the conclusion that the anticipated harms from conversion therapy are twofold,” Jackson claimed. “First, conversion therapy stigmatizes the patient, telling them that their gender identity or sexual orientation is something to be fixed, rather than accepted. This rejection can lead to shame and guilt, which in turn can cause long-term emotional distress. Second, conversion therapy sets patients up to fail by giving them an unattainable goal.”

Some major medical organizations have recently walked back guidance related to caring for minors with gender dysphoria. The American Society of Plastic Surgeons announced in February that it now opposes sex-change surgeries for minors, recommending delaying the procedures until at least 19 years of age.