New Supreme Court Justice Ketanji Brown Jackson speaks out
Yet few were prepared for Jackson’s bold debut in the first court session. Over eight pleas, she dominated the questions and commentary and spoke twice as much as her next most talkative colleague. It’s probably a record for a new justice, according to Adam Feldman, who follows such things for his Empirical SCOTUS blog.
Jackson was in all cases a persistent questioner. Her contributions ranged from the sweeping — a rejection of an original interpretation of a color-blind constitution that swooned the liberal legal community — to the sort of mundane details on which even Supreme Court decisions revolve.
Namely, in a case over federal law regarding overtime, “You are now suggesting that” [Section] 601 is distinctively high-compensated at the 455 level, but I see that in 600, which is not in the high-compensated.”
Janai S. Nelson, chairman of the NAACP Legal Defense Fund, said Jackson’s focus on issues big and small was “a joy to watch.”
“Many of us have argued for more diversity on the court, but I don’t think we expected there to be such a noticeable difference outside the gate,” Nelson said, adding that Jackson showed that oral arguments to the court are not. only “are” performative.”
“She asks very sharp questions and shows that it is important for the judges to be actively involved with the material and the issues and arguments and people before them.”
Some conservatives have muttered that Jackson’s candor has been praised as admirable, while judges on the right side of the political spectrum — Judge Neil M. Gorsuch in his 2017 debut, for example — have been criticized for appearing too strong.
But the appearance of a judge on the bench seems to be driven more by personality than by ideology. The late Judge Antonin Scalia, a staunch conservative, so dominated the dialogue at his first hearing that one of his colleagues said to another, “Do you think he knows the rest of us are here?”
The most memorable moment of Jackson’s first two weeks came in an extended monologue with Alabama Attorney General Edmund LaCour Jr. The case centered on whether the Voting Rights Act required the creation of a second congressional district, out of seven in the state, where the state’s sizable African American population would have a chance to elect a candidate of its choice.
The state argued that too much consideration for race when drawing congressional lines would conflict with the 14th Amendment’s guarantee of equal protection. Judge Amy Comey Barrett summed up what she saw as the state’s argument:
“I understand you said you are being asked, all states are being asked to navigate the rock and the hard place” because “if you were forced to adopt a map suggested by the plaintiffs, that would be racially gerrymanded was because race was predominant in his drawing… you would be violating the Fourteenth Amendment.
Barrett’s questions tested that premise, and Jackson followed suit.
“I’m so, so happy with Judge Barrett’s clarification,” the court’s newest judge began. Then, for nearly five minutes she explained her view of the Constitution.
“I don’t think we can assume that just because race is taken into account, that necessarily creates an equal protection issue,” Jackson said. “I understood that we looked at the history and traditions of the Constitution to see what its drafters and founders thought. And when I got to that level of analysis, it became clear to me that the drafters themselves have adopted the Equal Protection Clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race-conscious way.
She added: “The whole point of the [Fourteenth] The amendment was intended to secure the rights of the freed former slaves.”
The analysis was all the more remarkable because it was made by only the third African-American to serve on the court — and contradicts the “color-blind” constitutional views of Judge Clarence Thomas, the nation’s second black judge, who sits to the right of Jackson sits .
It also runs counter to some conservatives’ views on the text of the constitution: Carrie Severino and Frank Scaturro called Jackson’s take “faux originalism” in the National Review. on an equal footing, and no more than that.
But Elizabeth Wydra of the liberal Constitutional Accountability Center said she “couldn’t have been more excited” to hear Jackson’s elaborate comments; her organization has expressed a similar view of the 14th amendment.
“It’s about time we hear this view of the Constitution in the halls of the Supreme Court,” Wydra said, adding that “reclaiming that constitutional text in a voting case is very powerful.”
Jackson was also an aggressive questioner in the very first case the court heard about the scope of the Clean Water Act. Restricting what constitutes a body of water covered by the law would change the government’s regulatory authority.
Addressing the attorney challenging the current interpretation, Jackson asked, “You say the question of which wetlands are covered, which I agree with, but I think my question is, why would Congress draw the coverage line between adjacent wetlands and adjacent wetlands when the purpose of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”
By the end of the eight arguments, Jackson had spoken more than 11,000 words, according to Feldman’s statistics. That’s about double the nearly 5,500 words runner-up Justice Sonia Sotomayor spoke. (Justice Elena Kagan was in third place, indicating that while the three liberals of the court can be voted out this term in many cases, they will not be outvoted.)
Unlike some other recent additions to the court, Jackson had months after her confirmation to prepare for the court’s first round of arguments. Olivia Warren, a former Jackson clerk during her time as a judge on the court, said the judge’s questions reflect extensive preparation and interest in ensuring she understands the positions the attorneys take in their briefing.
“She knows the instructions inside out and quotes and quotes from them,” Warren said. “She is doing exactly what she said she would do at her hearing and that is to ask the parties to give her the information she needs to make an informed decision within the bounds of the law.”
Jackson replaced Judge Stephen G. Breyer, for whom she once worked. Breyer was wordy and his comments from the bank were filled with hypothetical data about the impact of the present case on the law.
Warren said Jackson views an oral argument as a conversation instead.
It seems clear that Jackson talks more extensively and asks more questions than the other recent court additions – Gorsuch, Barrett and Brett M. Kavanaugh. But direct comparisons are difficult, because the court has changed its oral pleading procedure since those judges joined.
Today Thomas — the oldest member of the court — gets the first opportunity to ask questions, followed by a session in which other judges may intervene with their interrogations. At one point, Chief Justice John G. Roberts Jr. to each judge in turn if he or she has any questions. Arguments that once ended promptly after an hour now routinely last much longer, sometimes more than double that.
“To the extent that other judges don’t use their opportunity as thoroughly as they do, that’s really their prerogative,” Nelson said. While some newcomers are more respectful, “I don’t think she came to court for a reason to stick to protocol,” the lawyer said.
Jackson is still relatively new to acting as a member of a judicial panel. For eight years, she ran her own courtroom as a federal district judge. During her year-long stint on the U.S. Court of Appeals for the DC Circuit, Jackson participated in pleadings for 17 days over a five-month period that ended when Biden nominated her to the Supreme Court in late February.
Her learning process at the Supreme Court started on the first day of argument, in the Schoonwaterwet case.
It has been common in court in recent years that after both sides have presented their cases, the challengers are given a chance for a few minutes of uninterrupted rebuttal. But when attorney Damien M. Schiff returned to the microphone, Jackson attacked with a series of questions.
After the interrogation continued, Roberts gestured for a page, who delivered a note to Jackson. She read it and smiled.
“We’ll give you an extra minute,” Roberts told the lawyer.