Justice Elena Kagan, an Obama appointee and one of the Supreme Court's three liberal members, used a pointed footnote in her concurring opinion Tuesday to dismantle 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. The rebuke landed where it would sting most: Kagan told Jackson that her own dissent contradicted itself.
The case, brought by licensed Christian therapist Kaley Chiles against the state of Colorado, asked whether a 2019 law barring counselors from advising minors on how to resist becoming transgender or gay violated the First Amendment. Eight justices said it did. Only Jackson disagreed, reading a 35-page dissent from the bench in a display that drew notice from legal observers across 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." In plain terms: Jackson was trying to blur a line the Court has long recognized, and Kagan was not going along.
Kagan's concurrence made clear she believed the Colorado law failed because it picked sides. She wrote that "the State has suppressed one side of a debate, while aiding the other," and called the constitutional issue "straightforward." She added that the case "would, however, be less so if the law under review was content-based but viewpoint neutral." That distinction mattered to Kagan. Jackson, in her view, had erased it.
This is not the first time Jackson has found herself at odds with colleagues on the high court. But a public footnote rebuke from a fellow liberal carries a different weight than 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."
The problem for Jackson was that no one else on the bench agreed. Not the conservatives. Not Kagan. Not Sotomayor. The Biden appointee stood alone.
Justice Neil Gorsuch wrote the majority opinion and framed the ruling in sweeping First Amendment terms. As the Washington Examiner reported, Gorsuch was joined by Chief Justice John Roberts and Justices Thomas, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett. The lineup itself told a story: the Court's two remaining liberals joined every conservative to reject Colorado's position.
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."
Gorsuch also described the ruling as narrow, directing the lower court to reexamine the Colorado law and ensure it did not interfere with Chiles's speech rights. The National Review noted that the Court's reasoning turned on a specific asymmetry in the statute: Colorado's law allowed counselors to affirm a client's gender identity or sexual orientation but barred counseling that helped clients pursue different goals. That one-way permission structure made the viewpoint discrimination plain.
Colorado's government had argued that the conversations between Chiles and her minor clients amounted to professional conduct the state was entitled to regulate, not protected speech. The majority rejected that framing outright. As Newsmax reported, the justices found that the statute raised serious First Amendment concerns because it targeted speech based on the viewpoint expressed, not the medium through which it was delivered.
Jackson's dissent adopted Colorado's reasoning almost wholesale, insisting that states should retain authority to regulate medical and mental health care even when speech is involved. But the 8-1 margin suggests the Court found that argument unpersuasive at best.
The case was brought by Kaley Chiles, a licensed Christian therapist who argued the law barred voluntary conversations with minor clients seeking help aligning their identity or sexuality with their biological sex. The New York Post reported that the decision was a sweeping win for Chiles, with even Kagan acknowledging the law's viewpoint-discriminatory structure.
The ruling carries implications far beyond Colorado. About two dozen other states have similar laws restricting therapists from counseling minors in ways that conflict with prevailing progressive orthodoxy on gender and sexuality. Those statutes now face serious constitutional questions.
Jackson herself seemed aware of the stakes, warning that the majority's reasoning could unravel state regulatory authority over licensed professionals. But her alarm found no support on the bench, a telling indicator of how far her position sat from the legal mainstream, even among justices appointed by Democratic presidents.
Jackson has drawn scrutiny before for conduct that critics say reveals political leanings unbecoming of a justice. She faced criticism for her appearance at the Grammy Awards, where she was seen applauding politically charged speeches. That episode prompted calls for accountability from Republican lawmakers.
Senator Marsha Blackburn went further, calling for an investigation into Jackson's conduct following the awards show appearance. The pattern raises a fair question: whether Jackson's jurisprudence is driven by constitutional text or by ideological commitment.
Kagan's footnote did not accuse Jackson of bad faith. It did something arguably worse in the world of appellate law: it accused her of incoherence. When a justice's own dissent lists examples that undercut its central premise, and a colleague from the same ideological wing points that out in writing, the message is unmistakable. The argument doesn't hold together.
Kagan and Sotomayor could have simply joined the majority without writing separately. They chose instead to draw a bright line between their reasoning and Jackson's. That choice speaks volumes about where the Court's liberal bloc stands on free speech, and where Jackson stands apart from it.
The majority opinion noted that the Constitution "does not protect the right of some to speak freely; it protects the right of all." That line, quoted by multiple outlets covering the decision, captures the simplicity of the principle Colorado tried to override.
When eight justices, spanning every ideological camp on the Court, agree that a state law picks winners and losers in the marketplace of ideas, and the sole holdout gets corrected by her own allies, the problem isn't the ruling. It's the dissent.
