Justice Elena Kagan, an Obama appointee and one of the Supreme Court's liberal stalwarts, used a pointed footnote in her concurring opinion Tuesday to publicly challenge 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 stings most, on the merits, from an ally.
The case, Chiles v. Salazar, produced a lopsided majority opinion written by Justice Neil Gorsuch. Seven justices joined him. Kagan and Justice Sonia Sotomayor wrote a concurrence agreeing with the outcome. Jackson stood alone, reading her 35-page dissent from the bench, a gesture the Court reserves for cases a justice considers deeply wrongheaded by the majority.
What makes the split remarkable is not that Jackson dissented. It is that Kagan went out of her way to say the dissent's own logic contradicted itself. That kind of intra-liberal friction, aired in a footnote for the permanent record, tells you something about where the Court's left flank sees the boundaries of free speech, and how far Jackson has drifted from even her closest ideological neighbors on First Amendment questions.
Colorado enacted the law in 2019. It barred licensed therapists from counseling minors if the therapy involved advising them on how to resist becoming transgender or gay. Kaley Chiles, a licensed Christian therapist, brought the challenge. She argued her conversations with youth clients were a form of protected speech. Colorado countered that the conversations amounted to professional conduct the state was entitled to regulate.
The Supreme Court sided with Chiles. Fox News Digital reported that the majority found the state had used its law to suppress one viewpoint while permitting the other, the textbook definition of viewpoint discrimination under the First Amendment. The ruling directed a lower court to reexamine the law and ensure it did not interfere with Chiles' speech rights.
Gorsuch framed the principle broadly in the majority opinion:
"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."
That language leaves little room for states to dress up speech restrictions as health regulations, which is precisely what Jackson tried to defend.
Jackson's argument rested on a distinction the other eight justices rejected. She contended that what happens between a licensed therapist and a minor patient is not ordinary speech but professional medical conduct subject to state regulation. The Washington Times reported that Jackson wrote: "The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel."
She doubled down in her dissent, insisting that Chiles was "not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional." Jackson warned of national consequences, noting that about two dozen other states have similar laws that will now need to account for the Court's ruling.
"Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned."
Jackson also argued: "Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want." And she invoked a broader principle: "Treatment standards exist in America."
The dissent, in other words, treated the government's power to license professionals as a near-blanket authority to dictate what those professionals may say. That position found no takers among the other eight justices, not even the two liberals.
Jackson's willingness to stand alone on contentious questions is not new. She has previously broken from the Court in dissent on matters where even her liberal colleagues found common ground with the majority.
Kagan's concurrence, joined by Sotomayor, agreed with the majority's result but suggested the analysis could have been narrower. She wrote that the case was "textbook" viewpoint discrimination:
"Because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward."
She added: "It would, however, be less so if the law under review was content-based but viewpoint neutral." That distinction, between content-based and viewpoint-based restrictions, was where she planted her flag. And it was where she took aim at Jackson.
In a footnote, Kagan wrote that Jackson's dissent "rests on reimagining, and in that way collapsing, the well-settled distinction between viewpoint-based and other content-based speech restrictions." She then turned Jackson's own words against her. Kagan noted that Jackson's dissent "claims that this is a small, or even nonexistent, category" of laws at risk from the ruling. "But even her own opinion, when listing laws supposedly put at risk today, offers quite a few examples."
That is a precise, lawyerly way of saying the dissent contradicted itself. When a justice uses a footnote to call out an ally's internal inconsistency, the message is clear: the disagreement is not just about outcome but about analytical rigor.
National Review noted that Kagan's concurrence emphasized the law was "a clear case of viewpoint discrimination," and that the Court said states may regulate professions but that power does not allow the government or licensing boards to dictate approved viewpoints or suppress disfavored speech.
Jackson's solo dissent fits a pattern. She has shown a willingness to stake out positions that place her not just to the left of the conservative majority but beyond the comfort zone of Kagan and Sotomayor. On questions involving gender identity and the scope of government authority, Jackson has repeatedly occupied ground that even sympathetic colleagues decline to share.
The Manhattan Institute's Ilya Shapiro captured the mood among legal observers. He posted on X, agreeing with a conservative lawyer's observation that Kagan appeared exasperated: "That should be a separate descriptor of an opinion: concurring, dissenting, expressing exasperation with Justice Jackson."
The Associated Press confirmed the 8-1 split, reporting that Kagan and Sotomayor joined or supported the ruling while Jackson stood alone in arguing states should retain authority to regulate health care even when speech is incidentally affected.
The ideological math here is worth pausing over. Two liberal justices, both appointed by Democratic presidents, looked at Colorado's law and concluded it was unconstitutional viewpoint discrimination. Jackson, a Biden appointee, looked at the same law and saw legitimate medical regulation. The gap between those positions is not a minor doctrinal quibble. It is a fundamental disagreement about whether the First Amendment protects speech that the government has decided is medically incorrect.
Jackson warned that about two dozen states with similar laws will now need to reckon with the Court's decision. She is right about that, even if the majority disagrees with her alarm. The Washington Examiner reported that the majority said Colorado cannot impose one-sided restrictions on what counselors may say to patients, and sent the case back to lower courts to review it as a free speech issue.
Gorsuch's majority opinion stressed that the ruling was narrow. But the principle it established, that a state cannot ban one side of a therapeutic conversation while permitting the other, has obvious implications for any jurisdiction that enacted similar laws. Those states built their bans on the same premise Colorado used: that certain counseling viewpoints are harmful conduct, not protected speech. The Court just rejected that premise, 8-1.
For licensed therapists like Kaley Chiles, the ruling means the government cannot tell them which side of a conversation they are allowed to have with their patients. For the two dozen states with similar statutes, it means their laws now face serious constitutional exposure. And for Jackson, it means her vision of government authority over professional speech has been repudiated by every one of her colleagues, including the two who usually stand beside her.
When Kagan writes a footnote rebuking Jackson's reasoning, the significance is not personal drama. It is doctrinal. The Court's liberal wing has now drawn a line: even justices sympathetic to progressive policy goals will not stretch the First Amendment past its breaking point to uphold speech restrictions dressed as health regulations.
Jackson's dissent argued that professional licensing gives the state broad power to control what therapists say. Eight justices, across the ideological spectrum, said no. The First Amendment does not bend because the government labels a conversation "treatment."
When you lose 8-1 and the footnote correcting your logic comes from your own side of the bench, the problem is not the Court. The problem is the argument.
