Justice Elena Kagan, an Obama appointee, took the unusual step of publicly criticizing fellow liberal Justice Ketanji Brown Jackson in the Supreme Court's lopsided 8-1 decision striking down Colorado's ban on so-called "conversion therapy" for minors, a ruling that landed as a clear victory for free speech and a pointed rebuke of government-imposed orthodoxy on counseling.
The criticism came not in a separate opinion but tucked inside a footnote of Kagan's concurrence, which Justice Sonia Sotomayor joined. 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." That's not boilerplate disagreement. That's one liberal justice accusing another of misreading foundational First Amendment law.
The case arose from a challenge by Kaley Chiles, a licensed Christian therapist in Colorado, who argued that her conversations with minor clients about sexual orientation and gender identity were constitutionally protected speech. Colorado countered that such conversations amounted to professional conduct the state could regulate. Eight justices disagreed with Colorado. Only Jackson sided with the state.
Justice Neil Gorsuch, writing for the majority, framed the constitutional question in direct terms. Colorado's 2019 law banned therapists from counseling minors if the therapy involved advising them on how to resist becoming transgender or gay, but it allowed counseling that affirmed those identities. That one-sided structure, the majority held, amounted to viewpoint discrimination in violation of the First Amendment.
As the Washington Times reported, Gorsuch concluded that Colorado's law targeted speech based on viewpoint rather than regulating conduct. He wrote:
"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."
The ruling was described as narrow. Rather than declaring the entire Colorado law unconstitutional on its face, the Court directed the lower court to reexamine it and ensure it did not interfere with Chiles' speech rights. But the principle at its center was anything but narrow: the government may not silence one side of a debate while amplifying the other.
That principle is why even Kagan and Sotomayor, two of the Court's most reliably liberal voices, joined the majority. As Kagan wrote in her concurrence, "Because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward." She added that the question "would, however, be less so if the law under review was content-based but viewpoint neutral", a signal that a more carefully drafted law might survive scrutiny. But Colorado's law was not that.
The Court has been active this term on questions touching culture, speech, and parental authority. It recently blocked a California law that concealed children's gender changes from parents, another case where the state tried to insert itself between families and information.
Jackson, a Biden appointee, filed a 35-page dissent and read it from the bench, a step justices typically reserve for cases where they believe the majority has committed a serious error. She argued that Chiles was "not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional." In Jackson's view, state regulation of medical practice, including talk therapy, does not raise First Amendment problems.
She wrote that "professional medical speech does not intersect with the marketplace of ideas," quoting the principle that "in the context of medical practice we insist upon competence, not debate." She warned of sweeping consequences:
"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 "before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want." And she asserted that "treatment standards exist in America."
But Kagan was not persuaded, and said so in unusually direct terms. Her footnote took aim at Jackson's claim that the category of laws threatened by the ruling was "small, or even nonexistent." Kagan responded: "But even her own opinion, when listing laws supposedly put at risk today, offers quite a few examples." In other words, Kagan caught Jackson contradicting herself within the same dissent, warning about a vast category of endangered laws while simultaneously insisting the category barely exists.
The Manhattan Institute's Ilya Shapiro captured the tone of conservative legal observers when he wrote on X: "That should be a separate descriptor of an opinion: concurring, dissenting, expressing exasperation with Justice Jackson."
The 8-1 margin is itself the story. This was not a 5-4 ruling where the Court's conservatives muscled past unified liberal opposition. Kagan and Sotomayor examined Colorado's law and concluded that it failed the most basic test of viewpoint neutrality. Jackson stood alone, not because the legal question was close, but because her theory of government power over professional speech was too expansive for even her closest ideological allies to accept.
AP News reported that the case could undermine similar bans in roughly two dozen other states that have enacted laws resembling Colorado's. Those states will now need to account for the high court's ruling and determine whether their own statutes survive the viewpoint-discrimination test the majority applied.
The implications reach beyond conversion therapy. The New York Post noted that Kagan and Sotomayor suggested a differently written, viewpoint-neutral law might survive constitutional review. That distinction matters: the Court did not rule that states can never regulate counseling practices. It ruled that states cannot regulate only the counseling they disagree with while leaving the counseling they prefer untouched.
The Court's busy term has also included major disputes over executive power. Oral arguments on birthright citizenship are forthcoming, with President Trump expected to attend the session, a rare move that signals the administration's investment in the outcome.
Just The News reported that Gorsuch explicitly rejected Colorado's argument that the therapy constituted conduct rather than speech, writing that "the First Amendment is no word game." That framing closes off a common regulatory workaround: states cannot simply relabel speech as conduct and then claim the power to ban it.
Jackson's dissent, by contrast, leaned heavily on deference to state medical regulation. She wrote that "the Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel." Breitbart reported that Jackson argued states have broad authority to regulate medical professionals, a position that, carried to its logical end, would give legislatures enormous power to dictate what licensed professionals may say to their own patients.
That theory found no takers among the other eight justices. And it drew a pointed correction from Kagan, not from across the ideological aisle, but from the seat next to Jackson's on the Court's left flank.
About two dozen states now face the prospect of revisiting their own conversion therapy bans in light of this ruling. The Court did not declare all such laws unconstitutional. But it established a clear principle: if a state bans counseling that discourages gender transition while permitting counseling that encourages it, the law discriminates based on viewpoint and violates the First Amendment.
That framework will force state legislators to choose. They can attempt to draft viewpoint-neutral regulations, a path Kagan's concurrence left open. Or they can leave their laws in place and wait for the inevitable legal challenges that this ruling has now empowered. Either way, the days of one-sided speech bans dressed up as medical regulation appear numbered.
The case also fits a broader pattern at the Court this term, where justices have been willing to draw hard lines on government overreach. From religious expression in public schools to election-law challenges, the Court has shown little patience for state actions that pick ideological winners and losers.
Several open questions remain. The specific lower court that will reexamine Colorado's law on remand was not identified. The full case name and docket number have not been widely reported in the initial coverage. And the practical effect on Chiles' practice, whether she can resume the counseling Colorado prohibited, will depend on how quickly the lower court acts.
The most telling detail in this case may be the smallest one: a footnote. Kagan did not need to single out Jackson. She could have written a clean concurrence explaining her own reasoning and left it at that. Instead, she chose to flag what she saw as a logical contradiction at the heart of Jackson's dissent, and she did it in writing, for the permanent record.
That choice speaks to something beyond a routine disagreement over legal doctrine. It suggests that Kagan viewed Jackson's position as not merely wrong but analytically careless, failing, in Kagan's words, to acknowledge the case law governing when speech can be regulated in the medical field. When a justice calls out an ally for ignoring settled law, the disagreement is not about emphasis. It is about rigor.
For the rest of the country, the message from the Court is simpler. Eight justices, appointed by presidents of both parties, agreed that the government cannot silence one side of a conversation and call it medicine. One justice disagreed. And her closest ally on the bench told her she was wrong.
When even your friends won't back you up, maybe the problem isn't the First Amendment.