Ketanji Brown Jackson’s presence on the U.S. Supreme Court would not only diversify the nation’s highest bench with its first Black woman, it would add a perspective of the law that has rarely been heard in the court’s more than 230 years, legal experts say.
President Joe Biden’s nominee is a former public defender and sentencing reformer whose family was directly affected by the tough-on-crime laws of the mass incarceration era. Jackson’s experience with a side of the law more often seen by average Americans would add “another lens to the conversation about how the Constitution is interpreted and how the laws are implemented in the country,” said Tiffany Jeffers, an associate professor at Georgetown University Law Center.
If confirmed, Jackson would take the seat of another liberal justice, Stephen Breyer, and join a court that is heavily weighted by former President Donald Trump’s conservative appointees. While her presence is unlikely to sway the court’s decisions on voting rights, policing, or other key issues for Black Americans, her perspective can influence the country through dissenting opinions – legal arguments written by justices who disagree with the majority.
Jackson’s voice on the court “offers a new energy. It offers a chance to impact hearts and minds of those who can’t understand the plight of the average American,” said Ada Goodly Lampkin, director of the Louis A. Berry Institute for Civil Rights and Justice at Southern University Law Center. “Sometimes it just takes one idea that no one has ever thought or considered before to inform a process, to inform a decision.”
Jackson, who previously clerked for Breyer, is expected to vote alongside the other liberal justices, Elena Kagan and Sonia Sotomayor. Chief Justice John Roberts, who was appointed by President George W. Bush, has sometimes sided with the liberal wing, dissenting from the majority on some pressing civil rights matters like the Texas bill outlawing abortions after six weeks.
It’s “monumental to have inclusivity in those decisions that become the values of our country,” even when expressed through dissents, Lampkin said.
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While in private practice in Boston, Massachusetts, Jackson’s clients included several organizations that advocate for women’s issues, including the Women’s Bar Association of Massachusetts, the League of Women Voters, the Abortion Access Project of Massachusetts, and NARAL Pro-Choice America, according to SCOTUSblog.com. She supported a Boston law that created a floating “buffer zone” around pedestrians and cars approaching abortion clinics.
In 2005, Jackson became an assistant federal public defender in Washington, D.C., a “really uncommon” experience for a Supreme Court justice, said Jeffers. Most justices come from the prosecution side of the justice system.
While in that position, Jackson helped a distant relative get released from a life sentence for a nonviolent drug crime under the “three strikes” law developed during the country’s war on drugs. She referred his case to a top law firm that represented him pro bono, according to The Washington Post.
“Judge Jackson has had some of the same experience as many Black folks in this country and therefore she can relate to how the interpretation of law can negatively impact an entire group of citizens,” said Patricia A. Broussard, a professor of law at Florida Agricultural and Mechanical University (FAMU) College of Law, in an email to Capital B.
Jackson also served on the U.S. Sentencing Commission, an independent agency that sets sentencing guidelines for federal courts, as the group alleviated harsh sentencing for certain drug crimes, including crack cocaine, according to SCOTUSblog.
“She understood how disparities plagued our criminal legal system and how mandatory minimums have served to embolden mass incarceration – and mass incarceration, we know, disparately impacts people of color,” Lampkin said.
Jackson’s nomination is a win not only for Black Americans, but all Americans “because she seems to have more in common with the bulk of Americans than many of the sitting justices,” Broussard said.
Jackson “can look at issues and laws through the lens of the ‘common person’ and understand and in some instances empathize with the inequalities that are often embedded in the law,” Broussard said.
Jackson’s legal credentials are broad. While serving as a judge on the U.S. District Court for Washington, D.C., she made rulings both in favor of and against law enforcement in qualified immunity cases – a legal precedent that gives government officials like police officers protection from being sued while doing their job.
Jackson currently serves on the U.S. Court of Appeals for the Washington, D.C., Circuit, a position that Biden appointed her to after her predecessor, Merrick Garland, left to become U.S. attorney general. Ahead of her confirmation hearing, Jackson received support from nearly two dozen Supreme Court law clerks and was confirmed in June 2021 by 53 of the 100 U.S. Senators.
Some of the current Supreme Court justices came from the same appellate court. Roberts and Justice Clarence Thomas both served as judges in the U.S. Court of Appeals for the Washington, D.C., Circuit and Justice Neil Gorsuch served as a clerk there.
Jeffers says Jackson had a “strong chance of being the nominee” not only because of her resume, but also because of the bipartisan support she received from the Senate for her current position.
Throughout Biden’s first year in office, he nominated more people of color and women to executive and judicial positions than any other first-year president, according to The Brookings Institution. Biden’s decision to place a Black woman on the Supreme Court came with backlash from some Republican senators.
The National Organization for Women (NOW), a women’s rights advocacy group, said in a statement that Jackson’s lived experience “will contribute a necessary viewpoint to ensure justice is served.” But the organization added that it is bracing for “what will inevitably be a concerted and ugly campaign to oppose this nomination, based on misogyny, racism and lies.”
“We know Judge Jackson has an impeccable record as a fair, knowledgeable and empathetic jurist who evaluates the law holistically to make the justice system more accessible for those it serves,” NOW President Christian F. Nunes said in a statement.
National Black Women’s Reproductive Justice Agenda President and CEO Marcela Howell called for the Senate Judiciary Committee to hold Jackson’s confirmation hearing immediately and to hold the votes to confirm without delay.
“Ketanji Brown Jackson is highly qualified and has a proven record of fighting for human and civil rights,” Howell said in a statement. “More importantly, Ketanji Brown Jackson has a distinguished career and an exemplary record of service serving on the bench of the second-highest court in the country and as a federal public defender.”
