Ketanji Brown Jackson joins a Supreme Court in turmoil


But as she starts her job, the court is in turmoil.

The justices work to maintain civility in public, but this term’s opinions revealed an underbelly of rage. Not only were the justices attacking the reasoning of their opponents in the case at hand, but they renewed grievances aired in previous opinions.

Things will not calm down anytime soon. New challenges related to women’s reproductive health, the Second Amendment and even same-sex marriage are likely to swirl in state and federal courts across the country. Related disputes will make their way back to the high court in some form, greeting the nine justices who are irretrievably divided on many social issues.

After her confirmation, in a stirring speech in the South Lawn in April, Jackson noted that in her family “it took just one generation to go from segregation to the Supreme Court of the United States.”

“It is an honor of a lifetime,” she said, “to have this chance to join the court, to promote the rule of law at the highest level, and to do my part to carry out shared project of democracy and equal justice under law forward, into the future.”
Those who know Jackson say her time serving on the lower courts has prepared her for the high court and a divided multi-member body. They believe her fractious confirmation hearings where Republicans accused her of being soft on child porn crimes opened her eyes to the depth of division in the country at a fraught moment in history.
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“She has reached the apex of her profession, but she is walking into a role in which it is not clear that she will have much influence, joining co-workers who clearly have deteriorating relationships,” said one friend who asked for anonymity.

Next term will be dramatic

Although summers are usually a time for the justices to flee Washington, the next term starts in three short months, and there are momentous cases on the docket.

On the very first day of the term, Jackson will take the seat reserved for the court’s junior-most justice and hear a case that could limit the federal government’s jurisdiction over wetlands protected under the Clean Water Act.

The next day, they will hear a redistricting case out of Alabama and explore the contours of a key provision of the Voting Rights Act that bars voting practices that discriminate on the basis of race.
Liberals will remember the words of the late Justice Ruth Bader Ginsburg in 2013, when the court gutted a separate provision of the Voting Rights Act which led to the “Notorious RBG” nickname. Back then, Ginsburg wrote that throwing out the protection was akin to “throwing away your umbrella in a rainstorm because you are not getting wet.”
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Still unscheduled are two affirmative action cases challenging admissions policies at Harvard and the University of North Carolina. Presumably because of her time serving on Harvard’s board of overseers, Jackson said during her confirmation hearing that she would recuse herself from the Harvard dispute. She still can, however, rule on the North Carolina challenge.
The court will also deal with a case concerning a web designer who won’t work with same-sex couples out of an objection to same-sex marriage. It’s a follow-on to a dispute in 2018 when the court sided with a Colorado baker who refused to make a cake for a same-sex wedding. The ultimate opinion in that case was carefully tailored to the dispute at hand and did not have broad nationwide implications. The new case could have a more sweeping result.

All this will play out as the court continues to try to determine who leaked a draft opinion of this term’s abortion case a month before its official release. The move triggered paranoia on the high court by shattering its norms and caused the justices to question who among them or their clerks attempted to undermine the court’s legitimacy.

Jackson was chosen by President Joe Biden not only for her sterling Ivy League credentials but for her diversity of experience, including time served as an assistant federal public defender, a commissioner on the US Sentencing Commission, a lawyer in private practice, and two stints on prestigious federal courts. She is the court’s first African-American woman, and will join Justice Amy Coney Barrett as the only other mother of school-age children. Jackson hails from Florida, originally where her own mother served as public school teacher and her father was a teacher who graduated from law school as an adult and later became chief counsel to the Miami Dade County School Board.

“It is a powerful thing when people can see themselves in others,” Biden said after Jackson was confirmed, saying that belief was “one of the reasons I believe so strongly that we needed a court that looks like America.”

Biden said Jackson endured “verbal abuse” during her Senate confirmation hearings, and praised her for her “poise and composure” in the face of the attacks from Republicans.

“The anger, the constant interruptions, the most vile, baseless assertions and accusations. In the face of it all, Judge Jackson showed the incredible character and integrity she possesses. Poise. Poise and composure. Patience and restraint. And yes, perseverance, and even joy,” Biden said.

Joining the liberal wing

The two other liberal justices, Elena Kagan, and Sonia Sotomayor — licking their wounds after a term marked by bombastic exchanges in several opinions — are likely looking forward to some fresh energy and new perspective even if they are losing Breyer, their friend, who also brought with him years of experience and hard-won friendships with some of the conservatives.

Jackson (like Kagan, Barrett, Chief Justice John Roberts, Neil Gorsuch and Brett Kavanaugh) joins the bench with a familiarity of how the court functions, having served as a clerk in 1999 for Breyer. But every time a new justice takes her seat, it changes the dynamic of the entire court.

Jackson will settle in among the liberals, taking direction at times from Sotomayor who — because of her seniority — now has the assignment power when the liberals are in dissent. They will strategize together on how to combat a conservative majority in the cases that divide them along ideological lines. This term, it was Breyer, as the senior liberal, who presumably decided that they would pen a joint dissent rather than an individual dissent joined by the others when the conservatives overturned Roe v. Wade. Such a show of force is unusual and underlined the gravity of the case.

Each justice brings her own style to the bench. Kagan, for example, often looks for a way to minimize conservative gains, seeking narrow areas of consensus. Sotomayor, on the other hand, writes for the rafters, hoping her dissents will someday become majority opinions. On the lower courts, Jackson was known for lengthy and meticulous opinions and had a reputation as a solid progressive.

But it will take years to determine where exactly she sits on the grand scale.

As for the five members of the right-wing of the court, they sent a clear message this term that they are prepared to continue the court’s move to the right at a rapid pace, eschewing precedent where necessary. The abortion case showcased the fact that they do not need Roberts’ vote, nor his preference for incrementalism. They have taken the reins from the chief and are charting their own course.

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“Justice Jackson will join a court that represents, with its conservative majority and more liberal dissenters, two starkly different visions of America and its Constitution,” said Elizabeth Wydra, President of the liberal Constitutional Accountability Center.

“She will likely have no illusions about being immediately able to write majority opinions vindicating equal rights or furthering liberty in a way that allows all people and diverse communities to thrive,” Wydra said.


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