- Elizabeth Cooper, JD, law professor and faculty director at the Fordham University Feerick Center for Social Justice
Justice Breyer is largely known for his pragmatic and cooperative approach, and we have reason to expect the same from Jackson: She told the Senate Judiciary Committee during her confirmation to her current seat on the U.S. Court of Appeals for the D.C. Circuit that she does not “have a judicial philosophy, per se, other than to apply the same method of thorough analysis to every case, regardless of the parties.”
Looking at Jackson's career trajectory, however, can shed more light on how we can expect her to rule, particularly on highly divisive issues. Notable is her experience as a federal public defender, representing indigent clients—many of them people of color—who often don’t understand how they’ve become entangled with the law in the first place. She’ll be the first Supreme Court justice to have held this role, which may inject into the Court a powerful perspective on the shortcomings of our criminal justice system (more on that below).
“The Supreme Court serves all of America, and therefore, it should reflect our wonderful diversity.” —Elizabeth Cooper, JD, Fordham University School of Law professor
It was largely this same experience, however, that formed the basis of the conservative argument against Jackson’s nomination, namely that she would be "soft on crime," as a condition of having “more sympathy for the victimizers than for the victims,” as Republican Senator Tom Cotton said during her confirmation hearings. Specifically, he and other Republican senators pointed to child pornography cases over which she ruled during her time as a federal D.C. judge, noting her decision to impose lighter sentences on the offenders than those called for by federal guidelines (which, it’s worth noting, have been identified by judges of all stripes as being overly harsh).
Because the rest of Jackson’s résumé leaves little room for question that she’s qualified for the Justice role—having graduated from both Harvard University and Harvard Law School, clerked for two federal judges, and later served for years as a federal judge—it was largely on these racially charged issues of criminal sentences that her confirmation hearings focused, alongside (also race-focused) issues of affirmative action and critical race theory. Undoubtedly, her personal experience as a Black woman in America will inform her take on all of the above, bringing a much-needed dose of representation to the nation’s preeminent decision-making body.
“The Supreme Court serves all of America, and therefore, it should reflect our wonderful diversity,” says Elizabeth Cooper, JD, professor at Fordham University School of Law. To the extent that Jackson’s perspective will likely reflect the Court’s current minority liberal opinion, Cooper expects that Brown will “draft and join carefully worded dissents, explaining why a different outcome may be required, and laying the foundation for a different approach in the future.”
Reviewing Jackson’s past rulings offers further insight into just what that approach may be, particularly when it comes to some of the biggest issues on the Supreme Court’s docket.
How Ketanji Brown Jackson’s views on key issues could influence her court rulings
While Jackson has a lengthy judicial track record, the majority of her opinions come from her eight years as a federal D.C. judge. During that time, she was primarily deciding how to apply the law based on precedent (rather than establishing new precedent, as she’d have the chance to do in her current role at the D.C. Circuit Court of Appeals, to which she was appointed just last year). As a result, there are only a few issues on which we have real clarity regarding where she stands and how we can expect her to rule going forward. But based on patterns of her opinions and rulings, we can make certain conclusions. Here's what we know:
Front and center on the Supreme Court’s docket is the question of how much influence the government should be able to wield over those seeking abortion. Jackson enters the discussion at a charged time, given the Court’s recent controversial ruling to uphold a Texas ban on most abortions at six weeks, and a soon-to-come ruling on a similarly restrictive Mississippi abortion law.
Where does Jackson stand on the issue? As a law associate, she co-wrote an amicus brief supporting a Massachusetts law that created a “buffer zone” around abortion clinics, requiring protestors not to block the entrances of these facilities. And in 2018, as a district judge, she ruled against former President Donald Trump’s early termination of grants for the federal Teen Pregnancy Prevention Program. Based on this track record, it's fair to conclude Jackson sees abortion as a reproductive right and would oppose any law that interferes meaningfully with that right.
Like her predecessor Justice Breyer, Jackson formerly served as a member of the U.S. Sentencing Commission (as vice chair). This experience, paired with her time as a federal public defender, granted her a close look at federal sentencing policy. As a result, we can expect some of her biggest contributions to the Court to be in this space.
While Jackson was on the Sentencing Commission, it retroactively cut sentences for many crack cocaine offenses in 2011, allowing thousands of incarcerated folks to seek reduced sentences, and freeing 1,800 inmates immediately. Her stance on loosening tough drug laws—which disproportionately affect people of color—likely stems from personal experience, too; her uncle was sentenced to life in prison for a drug offense (for which he later received clemency from former President Barack Obama).
In Jackson's rulings over recent cases, she’s been keen to avoid unconscious bias against convicted plaintiffs and demonstrate empathy. For example, as a district judge, she ruled in favor of a deaf man who was incarcerated in the D.C. Correctional Treatment Facility without being provided any form of accommodations, holding that “the failure of prison staff to conduct an informed assessment of the abilities and accommodation needs of a new inmate who is obviously disabled is intentional discrimination.”
Jackson’s views on environmental policy seem based more so on a measure of how much oversight certain federal agencies have over particular actions, rather than a goal to protect the environment at all costs. She has ruled both in favor of environmental causes (for example, allowing Guam to move forward with a lawsuit against the U.S. Navy for the creation of a water-polluting landfill) and against them (for instance, permitting the Department of Homeland Security to build a segment of Trump’s wall that violated local environmental regulations).
Even so, environmental groups like Sierra Club and the Natural Resources Defense Council have recently come out in favor of Jackson’s nomination, noting confidence that she respects the government’s role in protecting public health and our environment.
Particularly during the Trump era of unprecedented border crackdowns, Jackson showed herself to be a supporter of immigrants’ rights to due process, regardless of citizen status. In 2019, she issued an injunction to block the Department of Homeland Security from fast-tracking deportation for immigrants who had been in the country for less than two years and who hadn't received legal recourse.
And in October 2020, she sided with immigrant advocacy groups who sued the Trump administration over immigrant-officer training that toughened the vetting process for asylum-seekers. Jackson agreed that the language in the training lessons raised the bar too high, making it overly difficult for asylum seekers to prove their “credible fear” of persecution in their home country.
As with immigrants, many categories of workers are protected by law, which Jackson tirelessly worked to uphold in the face of flagrant executive orders proposed by Trump. In 2018, she struck down three of his executive orders that she ruled “undermined federal employees’ right to bargain collectively.” (These orders would’ve allowed federal agencies to fire people who they deemed were underperforming in as little as a month, and limit the amount of time these workers could spend on union-related work.)
And in her first opinion presiding over the D.C. Circuit appeals court earlier this year, Jackson sided with labor unions representing government workers, finding a Trump-era policy restricting their bargaining rights to be “capricious and arbitrary.” Her decision called for reinstating the previous (pre-Trump) requirement that any changes inflicted on workers’ conditions be subject to collective bargaining, supporting the workers’ rights to negotiate on their own behalf.
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