Updated: February 26, 2022 2:08:24 pm
Written by Adam Liptak
If Judge Ketanji Brown Jackson, President Joe Biden’s Supreme Court pick, is confirmed, she will almost immediately confront a docket for its next term filled with polarising issues, including the fate of affirmative action in higher education, the role race should play in drawing voting districts and whether businesses open to the public may discriminate against gay couples on religious grounds.
A review of a substantial sample of Jackson’s roughly 500 judicial opinions suggests that she would be about as liberal as the member of the court she hopes to replace, Justice Stephen Breyer. That would make her a reliable member of what would continue to be a three-member liberal minority on a court that is dominated by six conservative justices.
Jackson has a substantial judicial track record, having served on federal courts longer than several of the current justices had when they were appointed. But the great bulk of her opinions are from her eight years on the US District Court in Washington, as a trial judge, before Biden elevated her in June to the US Court of Appeals for the District of Columbia Circuit.
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Those opinions are diligent and exceptionally thorough, exhibiting a sure command of the facts before her and the relevant legal materials. But they are often less illuminating than appeals court rulings that establish precedents and bind other judges.
In Jackson’s eight months on the appeals court, she has issued two majority opinions, and they have been crisp and forceful. In a concurring statement issued Thursday, she staked out a position on an issue that often engages the Supreme Court: whether it is appropriate to vacate a lower court’s opinion after a case becomes moot.
She wrote that it was no small thing to alter the historical record.
I’m proud to announce that I am nominating Judge Ketanji Brown Jackson to serve on the Supreme Court. Currently serving on the U.S. Court of Appeals for the D.C. Circuit, she is one of our nation’s brightest legal minds and will be an exceptional Justice.https://t.co/iePvhz1YaA pic.twitter.com/Nzqv2AtN8h
— President Biden (@POTUS) February 25, 2022
“The dispute-and-decision bell cannot be unrung — there was a dispute and someone was declared the winner,” she wrote. “Written opinions are the most accurate historical record of what the supervising court thought of those events. And in a common law system of case-by-case adjudication, that history need not, and should not, be cavalierly discarded.”
She also sat on a three-judge panel of the appeals court that decided in December to reject former President Donald Trump’s assertion of executive privilege over the release of White House records concerning the Jan. 6 attack on the Capitol to a House committee.
The Supreme Court last month refused to block that ruling while limiting the force of some of its reasoning, with only Justice Clarence Thomas noting a dissent. On Tuesday, the court formally rejected Trump’s appeal.
On the district court, too, Jackson on several occasions ruled against Trump and his allies.
In 2019, she ordered Don McGahn, Trump’s former White House counsel, to testify about what House Democrats said was a pattern of presidential obstruction of justice. She said federal courts could resolve clashes between the other branches and rejected the administration’s argument that close advisers of the president had “absolute immunity” from congressional subpoenas.
“Presidents are not kings,” she wrote, adding, “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
She also blocked a Trump administration policy in 2019 aimed at speeding deportations, noting its human impact. “There is no question in this court’s mind that an agency cannot possibly conduct reasoned, nonarbitrary decision-making concerning policies that might impact real people and not take such real life circumstances into account,” she wrote in a decision later reversed by the appeals court.
In 2018, she struck down the bulk of three executive orders from Trump that would have made it easier to fire federal employees, saying they “conflict with congressional intent in a manner that cannot be sustained.”
For too long, our government and our courts haven’t looked like America. I believe it’s time that we have a Court that reflects the full talents and the greatness of our nation, with a nominee of extraordinary qualifications — Judge Ketanji Brown Jackson. pic.twitter.com/3EVQaolCFE
— President Biden (@POTUS) February 26, 2022
“This court has no doubt that the net effect of these provisions is to put an entire hand on the scale with respect to certain negotiable provisions of a collective bargaining agreement before negotiations even begin (never mind the thumb),” she wrote, “and to require agency negotiators to cut off any digits that union representatives might seek to extend in the hopes of reaching an agreement on these particular issues.”
The appeals court vacated the decision, saying the unions could not sue in federal court and had to bring an administrative challenge.
Legal scholars caution against reading too much into district court decisions. Tracey E George, a law professor at Vanderbilt University, said, “The idea that you could look to those things to determine if someone is liberal or conservative — that’s just not been my experience.”
In her time on the district court, Jackson seemed to take particular interest in criminal cases. In 2018, she forcefully rejected the government’s attempt to seize $180,000 from a drug dealer, which prosecutors said was the value of 2 pounds of heroin that police officers had captured. Prosecutors reasoned that the dealer, Keith J Young, had bought the heroin with money that had been used to facilitate a crime and so was subject to forfeiture.
“Despite the fact that the government has already seized the very drugs that Young allegedly tendered $180,000 to purchase,” she wrote, “the government maintains that Young should also be ordered to forfeit an additional $180,000 as a criminal penalty.”
That theory, Jackson ruled, “constitutes impermissible double counting and stretches the forfeiture doctrine beyond all reasonable limits.”
The next year, the Supreme Court ruled that the Constitution places limits on the ability of states and localities to take and keep cash, cars, houses and other private property used to commit crimes.
Jackson has called for the humane treatment of prisoners, ruling in favour of a deaf inmate whom correction officers kept in what she called “abject isolation, generally unaware of what was going on around him and unable to communicate effectively with prison officials, prison doctors, his counsellor, his teacher or his fellow inmates.”
The officers “figuratively shrugged and effectively sat on their hands with respect to this plainly hearing-disabled person in their custody,” she wrote, “presumably content to rely on their own uninformed beliefs about how best to handle him and certainly failing to engage in any meaningful assessment of his needs.”
In 2013, Jackson rejected a challenge to a regulation requiring labels specifying the country of origin of some meats, saying the regulation helped prevent consumer confusion. A trade group had argued that the required disclosures were compelled speech forbidden by the First Amendment.
In recent decisions, the Supreme Court has been receptive to claims of compelled speech, ruling that states may not force workers who choose not to join unions to help pay for collective bargaining or require religiously oriented “crisis pregnancy centers” to supply women with information about how to end their pregnancies.
The Supreme Court agreed Tuesday to decide what it framed as another compelled speech case, about whether Colorado may require a web designer who objects to same-sex marriage on religious grounds to create websites for such unions. The court put the question this way: “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
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