Justice Ketanji Brown Jackson didn't invoke Weimar Germany as a rhetorical flourish. She cited a specific scholar by name in a footnote: Ernst Fraenkel, a Jewish labor lawyer who observed the Nazi legal system from the inside, smuggled his manuscript out of
Berlin in 1938, and published "The Dual State" at the University of Chicago in 1941.
Fraenkel's framework is precise. The Nazis didn't immediately collapse Germany's legal system. They left courts functioning - particularly in contracts and economic matters - while placing Jews and political enemies in a separate lawless zone where no legal
protection applied. Most Germans lived in the law-bound "normative state." The targeted lived in the "prerogative state." The facade of normalcy was the mechanism of control.
Jackson invoked Fraenkel to name what the court's Republican majority is doing in real time. In 21 consecutive shadow docket cases, the six conservative justices have let Trump opt out of the law - often with no explanation given at all. They blessed ICE racial
profiling without citing a single legal justification. They allowed Trump to ignore $4 billion in congressionally appropriated foreign aid. They stripped lower courts of the ability to issue universal relief, meaning only those with resources to file individual
lawsuits get protection from illegal presidential action.
Constitutional law professor Evan Bernick put it plainly: "The court is adjusting the law to make place for arbitrary power."
Jackson's dissent is not hyperbole. A footnote citing a 1941 manuscript about Nazi legal architecture is a Supreme Court justice blowing the cover on what her colleagues are building.