What to expect of Ketanji Brown Jackson in the U.S. Supreme Court

As we approach Judge Ketanji Brown Jackson's confirmation hearing before the U.S. Senate, it'll be good to put the politics aside and take a look at the path that led her here, and what we can expect if she's confirmed.

 

Ketanji Brown Jackson faces the media as President Biden looks on. (Sarahbeth Maney/The New York Times)

On February 25th, 2022, President Biden formally announced Judge Ketanji Brown Jackson as his nominee to the U.S. Supreme Court of Justice (SCOTUS). If confirmed by the Senate, she would be replacing Justice Stephen Breyer, known for his wisdom, pragmatism, and deep understanding of the U.S. Constitution, and who is stepping down from the Court.


The timing of his retirement is not only due to old age -as he’s the oldest member of the Court at 83 years old- but also because the Democrats control both the White House and the Senate, and his retirement will pave the way for a new liberal nominee to be appointed.


If confirmed, Judge Jackson will be the first black woman, as well as the second black Justice to currently serve on the Court, alongside conservative Justice Clarence Thomas. This would also make Brown Jackson the third black Justice to serve on the Court after Thomas and Justice Thurgood Marshall before him. Additionally, she would be the sixth woman to serve in the Court and for the first time, four women would sit together on the nine-member Court.


But who is Ketanji Brown Jackson and what could she provide for the Supreme Court? Let’s take a look.


Her background


Judge Ketanji Brown Jackson was born in Washington, D.C. and was raised in Miami, Florida. Both her parents started as public school teachers and became leaders and administrators in the Miami-Dade Public School System. She graduated magna cum laude from Harvard University, and then attended Harvard Law School (HLS), where she graduated cum laude and was an editor of the Harvard Law Review, the most prestigious law review published by an independent student group in the world.


After Harvard, she served as law clerk for Judge Patti B. Sarris of the U.S. District Court for the District of Massachusetts, and then for Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit. She later spent a year in private practice at a law firm in Washington D.C. and then served from 1999 to 2000 as Justice Breyer’s law clerk, that’s right, the Justice she is expected to replace, if confirmed by the Senate.


From 2002 to 2004, she worked for Kenneth Feinberg, the lawyer who was known for his role as the special master of the US government’s 9/11 Victim Compensation Fund. If he sounds familiar it’s because he’s the guy portrayed by Michael Keaton in the 2020 biographical film “Worth” available on Netflix.


She also worked as a federal public defender representing defendants who did not have the means to pay for an attorney, including some multiple Guantanamo prisoners. This would make her the first former federal public defender to serve on SCOTUS.


In 2009, President Obama nominated her to serve as the Vice Chair of the U.S. Sentencing Commission and she was confirmed with bipartisan support in 2010. She served on said Commission from 2010 to 2014, during which the verdicts for various drug offenders were significantly reduced.


In 2012, President Obama nominated her to be a judge for the U.S. District Court for the District of Columbia, and she was confirmed with bipartisan support a year later. The D.C. Circuit has historically been seen as a stepping stone to SCOTUS.


During her tenure as a district court judge, she issued multiple high-profile rulings, such as the one related to the “Pizzagate” scandal, and others concerning the Trump Administration, including the Committee on the Judiciary, United States House of Representatives v. Donald F. McGahn II, in which she infamously wrote that: “Stated simply, the primary takeaway from the past 250 years of recorded history is that presidents are not kings.”


In 2016, President Obama interviewed her as a possible nominee for SCOTUS after the death of Justice Antonin Scalia. Later in 2021, she was one of President Biden’s first judicial nominees, being confirmed with bipartisan support to the U.S. Court of Appeals for the D.C. Circuit in that same year. Now, after eight months serving as an appellate judge, she was nominated by President Biden for SCOTUS to replace her former mentor Justice Stephen Breyer.


The current situation in the Supreme Court


Nine Justices make up the current Supreme Court, namely: Chief Justice John G. Roberts, and Associate Justices Clarence Thomas, Stephen Breyer (who’s retiring due to age), Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barret.


All current justices, except for Barrett, have Ivy League backgrounds as either undergraduates or law students. Judge Jackson would also be included in those Justices with said background, if confirmed by the Senate.


Formerly, there was a conversative majority of 5-4 in the Court, but upon the death of Justice Ruth Bader Ginsburg and the subsequent nomination and confirmation of Justice Amy Coney Barret, the majority shifted to 6-3.


The conservative Justices include Chief Justice Roberts, Associate Justices Thomas, Gorsuch, Kavanaugh, and Barrett (the last three were nominated by President Trump). In contrast, the liberal minority is integrated by Associate Justices Breyer, Kagan, and Sotomayor.


What to expect


Most probably, Judge Jackson would join the liberal minority of a conservative-dominated court, as indicated above. One of the biggest unknowns is if she will be able to build consensus in the nine-member Court. Some say that she could try the same approach that her former mentor Justice Breyer used, that is, to try to curb the Court’s conservative bias by reducing cases and looking for compromise decisions where possible.


But the fact that the Court is now split 6-3 under firm control of conservatives, as opposed to the former 5-4 split, could prove a considerable obstacle for implementing this approach. Also, if appointed, she could have the opportunity to show how she could change said equation, as SCOTUS is prepared to take up a suit filed against Harvard in 2014, regarding affirmative action in college admissions. However, it is still not clear if she could take part in that case, as she has served on Harvard’s Board of Overseers, since 2016.


Even though Judge Jackson comes from a similar educational background as many of the other Justices, her professional experience seems to be different and could prove helpful for diversifying the Court. Her previous experience as a federal public defender has caught the eye of many, especially, of liberal legal activists who have always argued that too many of the former and current Justices have been former federal prosecutors and have tended to harbor pro-prosecution perspectives.


Other notable cases that she could participate as Associate Justice could tackle abortion rights, gun control and voting rights, all matters on which it would be very interesting to hear her opinion. Judge Jackson is only fifty-one years old and if confirmed, she may at least take the seat for thirty years, during which the ideological equation could change.


Now, we will have to wait and see if President Biden achieves the Senate’s consent to confirm Judge Jackson to the Supreme Court, on March 21st. But be sure to take into account that she has already gone through two judicial confirmations in the past ten years, and in both cases has gained bipartisan support.

 

Juan Andres Miralles is a lawyer from Universidad Católica Andrés Bello (Caracas, Venezuela), currently pursuing his Master's Degree in Business Administration at Instituto de Estudios Superiores de Administración (IESA). He works in private legal practice and is co-editor of The Explorer. You can find him on Linkedin at Juan Andres Miralles Quintero and on Twitter at @JuanMiralles96.