From her first week on the Supreme Court bench in October to the final day of the term that ended last week, Justice Ketanji Brown Jackson did something remarkable for a junior justice: she established herself as a distinctive voice on the court.
“She was not intimidated by her surroundings or the historical significance of her appointment,” said Melissa Murray, law professor at New York University. “She came to play.”
Other justices have spoken of taking years to find their footing on the court, but Justice Jackson, the first Black woman to serve on the Supreme Court, wasted no time.
“Justice Jackson really hit the ground running,” said Pamela S. Karlan, a law professor at Stanford. “And the lines are pretty sharply drawn between her and the majority on criminal justice issues and on racial justice.”
On her second day of arguments, she laid out a kind of mission statement, asking a long series of questions about the history of the 14th Amendment, adopted after the Civil War and intended to protect formerly enslaved Blacks. “That’s not a race-neutral or race-blind idea,” she said.
In focusing on the original meaning of the amendment, she adapted a conservative method to press for a liberal result. When the court issued its 5-to-4 decision in the Alabama voting rights case, she was on the winning side.
During her confirmation hearings, to the surprise of some, Justice Jackson declared herself an originalist, meaning, she explained that she interprets the Constitution based on how it was understood at the time it was adopted. “I look at the text to determine what it meant to those who drafted it,” she said.
But Judge Jackson’s originalism has an unmistakably progressive orientation that takes into account not only the original Constitution but also the three transformative amendments adopted after the Civil War.
“In her first term on the bench, Justice Jackson challenged the dominant conservative narrative of the Constitution, pulling together constitutional history to explain that our national charter requires meaningful equality and supports a truly thriving multiracial democracy,” said. Elizabeth Wydra, president of the Constitutional Accountability Center, a liberal group. “This could mark a new chapter for the court, where we see a real, sustained challenge to the conservative originalism of the current supermajority, both rooted in text and history.”
On the last day of the term, after two days in which she and her two liberal colleagues suffered sharp losses in 6-to-3 decisions on affirmative action, student debt and the clash between free speech and gay rights, Justice Jackson issued one last disagreement before the court’s summer recess. The court should have agreed to hear a challenge to an 1890 criminal disenfranchisement law in Mississippi that was the product of avowed racism, she wrote.
“As she sees things, we are all inescapably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black people still determining our lives today,” Judge Thomas wrote, adding that “in her view, almost all. of the results of life can be unhesitatingly attributed to race.”
In a footnote in her dissenting opinion, Judge Jackson dismissed the criticism. “Justice Thomas’s prolonged attack is in response to a dissent that I did not write,” she said, adding that his opinion “also shows an obsession with race consciousness that far exceeds my or UNC’s holistic understanding that race can be a factor that affects the unique life experiences of candidates.”
Justice Thomas’ opinion was striking, Professor Murray said. “Parts of his consent read like an old Black man berating and punishing a wandering Young Turk who publicly contradicted him and didn’t show him enough respect,” she said. “It’s almost as if he expects racial solidarity from her and is thrown off when it doesn’t come the way he expected.”
The lead dissent in the case, by Justice Sonia Sotomayor, was as vigorous as Justice Jackson’s. “But Thomas’ fire is not aimed at Sotomayor,” Professor Murray said. “It’s reserved for Jackson.”
Justice Jackson is a member of a three-justice liberal minority, which means she typically doesn’t have much power to influence the outcomes of important cases. But sometimes she can make important contributions at the margins.
When the challenge to the race-conscious admissions program at UNC was argued in OctoberJudge Jackson asked a telling question about hypothetical application essays – one from a white fifth-generation heritage and the other from a Black student whose ancestors were enslaved.
“The first applicant could have his family background considered and evaluated by the institution as part of its consideration of whether to accept him or not,” she said, characterizing an aspect of the challengers’ argument, “while the second would not want to accept. cannot, for his story is in many ways connected with his race and with the race of his ancestors.”
When the decision in the case was issued eight months later, Judge Jackson was on the losing side. But Chief Justice Roberts’ majority opinion contained a caveat: “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race has affected his or her life, whether it is through discrimination, inspiration or otherwise.”
Professor Murray said this was an unkind response to Justice Jackson. “I don’t think John Roberts would have included that paragraph if it weren’t for her incisive hypothesis,” she said.
All in all, said Roman MartinezSupreme Court specialist at Latham & Watkins, “Justice Jackson had an impressive year on the court.”
“She was a strong and enthusiastic questioner at oral argument, wrote incisive opinions and developed an interesting cross-ideological alliance with Justice Gorsuch supporting fairness and due process for the ‘little’ in disputes against government authority,” Mr. Martinez said.
In May, for example, the court ruled unanimously that states that confiscates and sells private property to recover unpaid taxes violates the constitutional takings clause if they withhold more than what the taxpayer owed. Justice Neil M. Gorsuch issued a concurring opinion that explored another potential constitutional violation: the Eighth Amendment’s prohibition of “excessive fines.”
Only one other member of the court joined the opinion: Judge Jackson. That was also true of consensus opinion by Judge Gorsuch in a copyright dispute involving Andy Warhol, and by disagreement by Judge Gorsuch of an order temporarily preserving a pandemic-era immigration initiative.
Judge Jackson is 52, and she will likely serve for several decades. The composition and direction of the court will undoubtedly change. For now and mostly, Professor Murray said, “she writes for an audience and for a future where she may not always be in disagreement.”