President Biden’s reported Supreme Court nominee is a conventionally qualified judge with a strong background in criminal justice reform.
President Joe Biden has chosen Judge Ketanji Brown Jackson, a former public defender and current judge on a powerful Appeals Court circuit, as his nominee to replace retiring Supreme Court Justice Stephen Breyer, multiple outlets reported Friday.
If confirmed, Judge Jackson will be the first Black woman ever to sit on the Supreme Court, and she enters the confirmation process with an impressive resume full of the kind of elite credentials typical for new justices. Yet, while Jackson has been a judge for nearly a decade, her record is heavy on complex, technocratic cases and light on the sort of contentious issues that typically drive confirmation fights.
In a less polarized era, Jackson’s mix of superb legal credentials and a largely apolitical record would have made her a shoo-in for confirmation. In today’s era, it means that she will probably be narrowly confirmed.
Jackson graduated from Harvard twice, once with honors and once with high honors, and clerked for Breyer — a particularly coveted credential typically reserved for young lawyers with absolutely stratospheric academic and professional records. At age 51, Jackson would also be the second youngest justice, behind Justice Amy Coney Barrett, if confirmed.
She is also a leading expert on federal sentencing policy, having previously served as vice chair of the United States Sentencing Commission, where she helped reduce sentences for drug offenders. If confirmed, she will also be the only justice with significant experience representing low-income criminal defendants (though not the only justice to work as a criminal lawyer; Justices Samuel Alito and Sonia Sotomayor were once prosecutors).
Jackson has been a federal judge since 2013, serving first as a trial judge in DC. In 2021, Biden elevated her to the United States Court of Appeals for the District of Columbia Circuit, which is widely viewed as the second most powerful court in the country because of its steady diet of cases challenging federal policymaking and other major actions by federal agencies.
But Supreme Court confirmations are about ideology, not just qualifications. And Jackson will now face confirmation in a malapportioned Senate where Republicans are overrepresented, and where they control half of the seats. Her impressive resume is unlikely to move many — if any — Republican senators to confirm someone who is likely to disagree often with the mix of conservative ideologues and GOP partisans who currently control the Court.
Yet, while widespread Republican opposition to a Democratic Supreme Court nominee is all but ensured, it’s unclear what, exactly, will be the GOP’s case against Jackson.
Because DC-based federal courts specialize in often-very-technical disputes involving federal agencies, Jackson has not heard many cases involving the kind of hot-button issues that dominate Supreme Court confirmation hearings. Her record reveals someone who is very comfortable winding her way through a labyrinth of conflicting statutes, but who has never handed down a significant decision on issues such as race or abortion.
Jackson’s nomination is likely to excite criminal justice reformers
During his first year in office, Biden also picked lower court nominees with professional backgrounds that are underrepresented on the federal bench. Many of Biden’s judges are public defenders, civil rights lawyers, or other attorneys with significant professional experience working for the most vulnerable clients. Jackson fits this mold.
In 2003, for example, Jackson left a lucrative job in private practice to spend two years working as a staffer on the US Sentencing Commission, the federal agency that writes guidelines that shape most criminal sentences in federal court. But she eventually decided that, in her own words, she “lacked a practical understanding of the actual workings of the federal criminal justice system” and should spend some time “serving ‘in the trenches’” if she was going to help set sentencing policy.
To that end, she took a job as an assistant federal public defender in DC, where she represented indigent clients at trial and argued appeals in the DC Circuit — the same court where she now sits. The last Supreme Court justice with significant experience representing criminal defendants was Justice Thurgood Marshall, the legendary civil rights lawyer who left the Court in 1991.
Jackson also became an important criminal justice policymaker before her elevation to the bench in 2013. In 2010, President Barack Obama nominated Jackson to serve as vice chair of the Sentencing Commission, and she served in that role until 2014.
While Jackson was on the commission, it retroactively reduced sentences for many crack cocaine offenses in 2011, permitting about 12,000 incarcerated individuals to seek reduced sentences and making an estimated 1,800 inmates eligible for immediate release. It also cut sentences for most federal drug offenders during her last year as a commissioner.
Her work on sentencing earned her rare praise from the top Republican on the Senate Judiciary Committee. During her 2021 confirmation hearing for the DC Circuit, Sen. Chuck Grassley (R-IA) pointed to his own work on the First Step Act, a criminal justice reform bill that became law in 2018, and told Jackson that he “really appreciate[s] your work on the sentencing reform.”
But Grassley’s praise of Jackson’s sentencing reform work didn’t actually lead him to support a Democratic nominee to a powerful court. Grassley was one of 44 Republicans who voted not to confirm Jackson to the DC Circuit.
Many of Jackson’s most significant decisions involve complex questions about executive power
As Jackson herself has explained, DC-based federal judges hear a unique mix of cases that are light on the topics heard by most federal judges, and are “largely comprised of legal disputes concerning the scope and application of the federal government’s power.” Often, these sorts of cases involve convoluted statutes governing which agency is allowed to set which policies, and which courts (if any) are allowed to review those decisions.
Jackson’s decision as a DC trial judge in Guam v. United States offers a window into how these cases can tie even veteran judges in knots. That case involved a landfill on Guam, created by the US Navy at a time when Guam was a military protectorate governed by the Department of the Navy. As Jackson explained in her Guam opinion, “by the time the United States government relinquished control of Guam to civilian authorities in the year 1950,” the landfill already contained “significant quantities of trash and hazardous waste that posed a serious risk to the surrounding environment.”
Guam eventually sued the federal government, seeking money to cover the $160 million in costs to clean up this landfill. But Guam sued under a federal environmental law that contained two competing provisions, one of which included a three-year statute of limitations — meaning that Guam’s lawsuit was doomed if this statute of limitations applied.
Jackson ruled that the three-year limit did not apply, but was reversed by a unanimous DC Circuit panel. That DC Circuit decision was then reversed by the Supreme Court, effectively reinstating Jackson’s original decision.
In Make the Road New York v. McAleenan, Jackson dealt a significant, but ultimately only temporary, blow to the Trump administration’s harsh immigration policies — after navigating an utterly dizzying array of interlocking federal statutes.
A federal law permits, but does not require, the federal government to remove undocumented immigrants who have been in the United States for less than two years using an expedited process. In 2019, the Trump administration announced that it would exercise this authority to its maximum extent, effectively denying a meaningful hearing to many immigrants facing deportation.
Jackson’s opinion in Make the Road is more than 120 pages long, and it is impossible to summarize the legal issues in this case concisely. They involve a complicated web of federal immigration and administrative procedure laws governing when the expedited process may be used, which procedural steps an administration must complete before changing its immigration policies, and when a federal court is allowed to review the changed policy.
Though Jackson ruled against Trump, she did so on narrow grounds, determining that his administration must seek public comment on its new immigration policy and provide a fuller explanation for the change before it could go into effect. Her decision was reversed by the DC Circuit, which determined that the Trump administration was allowed to make these changes without judicial oversight.
Conversely, in Center for Biological Diversity v. McAleenan, Jackson dismissed a lawsuit brought by environmental groups challenging the Trump administration’s decision to waive certain environmental laws while building a border wall near San Diego.
The upshot of these and similar decisions is that, while Jackson often hears cases involving controversial moves from political leaders, it’s hard to tease out an ideology from those decisions. The specific legal questions that come before her frequently involve conflicting statutes and difficult jurisdictional problems, not policy questions such as whether to expand gun rights or ban abortions.
That said, there are a couple of cases likely to receive a fair amount of attention at her confirmation hearing.
Jackson v. Trump
The first is Jackson’s lengthy opinion in Committee on the Judiciary v. McGahn, a case where she ruled against the Trump administration’s attempt to stonewall a congressional investigation. In McGahn, Jackson rejected the Trump administration’s claim that “a President’s senior-level aides have absolute testimonial immunity” from a congressional subpoena, after a House committee subpoenaed former Trump White House counsel Don McGahn.
Jackson’s opinion in McGahn may be best known for one of its most widely quoted lines: “Presidents are not kings,” Jackson wrote, and “they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.” But the actual holding of her opinion was quite narrow. Though Jackson concluded that senior presidential aides must appear before a congressional committee that subpoenas them, she also held that “the specific information that high-level presidential aides may be asked to provide in the context of such questioning can be withheld from the committee on the basis of a valid privilege.”
Thus, such a senior aide must physically appear before the committee, but the actual substance of their testimony may be quite thin if the committee probes matters that are protected by executive privilege.
Unfortunately, the case descended into a partisan food fight on appeal. A three-judge panel of the DC Circuit initially determined that Jackson lacked jurisdiction to hear the case, with two Republican judges rejecting Jackson’s approach and one Democratic judge in dissent. That decision was repudiated by the full DC Circuit, in a decision that also broke down along party lines. The full court then sent the case back to the same three-judge panel to resolve two lingering questions not addressed by the full court — and the panel once again voted along party lines to dismiss the case.
Eventually, after Biden took office, McGahn agreed to testify in 2021.
In December 2021, Jackson also joined a unanimous DC Circuit decision holding that Trump cannot prevent the House investigation into the January 6 attack on Congress from obtaining certain records from the Trump White House. That decision, in Trump v. Thompson, was upheld by the Supreme Court.
Republicans don’t really have a narrative against Jackson
Biden’s decision to name Jackson to the Supreme Court will surprise no one who pays attention to the judiciary. Obama interviewed Jackson for the cursed Supreme Court nomination that eventually went to then-Judge Merrick Garland in 2016 — a rare honor for a judge who, at the time, only served on a trial court. Jackson was also the first Biden nominee confirmed to any court.
Both the Obama and the Biden White Houses, in other words, sent loud signals that Jackson was a serious contender for the top Court.
So, when Jackson appeared before the Senate Judiciary Committee last April, Republican senators must have known that this hearing was one of their few chances to rough up a potential Supreme Court nominee before a vacancy even opened on the Supreme Court. Yet, the Judiciary Committee’s Republicans did not present a coherent narrative against Jackson at her last confirmation hearing, and many of them didn’t even seem to try.
Sens. Grassley and Mike Lee (R-UT), for example, spent their time asking fairly wonky questions about sentencing policy. Sen. Ted Cruz (R-TX) primarily asked about how Jackson understands vague terms like “judicial activism” and “living constitution.” Sen. Josh Hawley (R-MO) pointed out that Jackson briefly served on the board of a private Christian school that, unbeknownst to Jackson, once published language on its website opposing abortion and marriage equality.
Presumably Hawley, who has often seemed to openly advocate for Christian nationalism, would think that Jackson’s association with this school is a reason to support her nomination.
Meanwhile, a few Republican senators attacked Jackson because her nomination was supported by Demand Justice, a left-leaning group that works on judicial nominations. Sen. Thom Tillis (R-NC) criticized her because her opinion in McGahn was favorably quoted by MSNBC host Rachel Maddow.
And then there was Sen. Tom Cotton (R-AR), who asked Jackson if she’s “ever represented a terrorist at Guantanamo Bay.” Jackson responded that, during her time as a public defender, she was assigned a client who was detained at Guantanamo.
Jackson’s last confirmation hearing, in other words, suggests that, even after Republican opposition researchers had months to comb through her record and find ways to embarrass her at her hearing, the most they were able to find is that Jackson did her job after she was assigned a potentially controversial client, and that she once wrote an opinion that a liberal cable news host liked.
Perhaps that explains why Biden chose her. Jackson combines elite credentials and technocratic rigor with a record that Republicans have failed to find any real reason to criticize. In another era, that would have ensured that she’d be confirmed overwhelmingly.
In this era, it will likely be just enough to get her the votes of the 50 Democratic senators she needs to make it to the Supreme Court — and, if she’s lucky, maybe a handful of Republicans.