The new nominee

On the morning of Feb. 25, the day after Russia’s military marched into Ukraine, the news cycle pivoted slightly when President Joe Biden announced his pick to fill retiring Justice Stephen Breyer’s seat on the high court: Judge Ketanji Brown Jackson of the D.C. Circuit Court of Appeals.

While not a household name, Jackson is no stranger to court watchers who have considered her a front-runner to succeed Justice Breyer since her nomination and confirmation to the federal appeals court in 2021. Progressive legal groups including Demand Justice, Alliance for Justice, and Take Back the Court have enthusiastically endorsed Jackson, touting her as bringing diversity to the high court—not only as a black female but also as the first nominee with experience as a public defender.

Jackson’s legal pedigree mirrors eight of the current justices who also hold Ivy League law degrees: She received her undergraduate and law degrees from Harvard. Before attending law school, Jackson did a one-year stint as a journalist with Time magazine.

She served as a D.C. District Court judge for eight years, nominated to the position by President Obama in 2012. Prior to that, she held the position of vice chair and commissioner of the U.S. Sentencing Commission—the result of another Obama appointment. If confirmed, she will share a distinction with Justice Sotomayor as the only other justice on the current court who previously presided over federal trials. Jackson clerked for three federal judges, including Supreme Court Justice Stephen Breyer.

Born in Washington, D.C., in 1970 to two schoolteachers, Jackson and her family moved to Miami when she was 3. She met her husband, Dr. Patrick Jackson, when they were both students at Harvard. Married for 25 years, they have two daughters: Talia, 21, and Leila, 17. Jackson’s younger brother—mentioned occasionally in her speeches—is Army veteran and former undercover narcotics detective Ketajh Brown.

Her nomination sits squarely between effusive praise from the left and sharp criticism on the right: each side voicing certainty about where Jackson will fall in the spectrum of current jurists on the court. The media and political pundits alike have attempted to glean Jackson’s political leanings and infer how she will influence the court. Her published decisions have a dearth of definitive rulings on controversial topics involving abortion, voting rights, religious liberty, and LGBTQ issues.

Jackson’s ruling most often cited in the press is her 120-page opinion in the 2019 Committee on the Judiciary v. McGahn case, where she famously proclaimed “Presidents are not kings” and rejected former President Trump’s claim of executive immunity, which Trump asserted to prevent former White House Counsel Don McGahn’s testimony before Congress. After appeal, the case danced around in the appeals court but was eventually rendered moot when McGahn’s lawyers reached a settlement for a closed-door session.

In a 2019 immigration-related case, Jackson granted an injunction temporarily halting the Trump administration’s policy to accelerate deportations of illegal immigrants into the United States, citing a violation of the Administrative Procedure Act (APA) and the administration’s failure to take into account the policy’s effect on the deportees’ families. The D.C. Circuit overruled her, finding that Congress had given Homeland Security the discretion to act without having to comply with the APA.

As an appellate judge, Jackson has authored two decisions: In the first, labor unions challenged the federal government’s revision of circumstances under which it was required to engage in collective bargaining when a change to working conditions affected employees. As with the 2019 deportation case, Jackson and two other judges unanimously agreed with the unions, ruling the government violated the APA by engaging in “arbitrary and capricious” decision-­making. This holding tracks with a 2018 decision by Jackson striking down three of Trump’s executive orders viewed by the judge as “eviscerating” the unions’ right to bargain collectively. Siding with the unions has garnered Jackson their strong support for rapid confirmation to the high court.

Her second published appellate court decision involved a dispute between a contractor and the Republic of Iraq and whether Iraq had waived its sovereign immunity to being sued in a U.S. court. In another unanimous ruling, she and the two conservative judges ruled no waiver occurred and remanded the case to the district court.

The only easily discernible trend to Jackson’s rulings shows that Jackson places great emphasis on the government’s responsibility to comply with proper policy-making processes. She also requires those opposing the government to demonstrate they have met the elements of their asserted cause of action. For example, her judicial record includes findings both for and against qualified immunity for law enforcement.

Her four years at the U.S. Sentencing Commission and her public defender work give her a unique perspective and sensitivity to issues affecting the incarcerated. During her time on the commission, the disparity in sentencing between thresholds for powder and crack cocaine offenses were reduced based on a disparate impact on minorities.

Jackson enjoys a good reputation in the legal community at large. Two well-known conservative former judges—retired Judge Thomas Griffith of the D.C. Circuit and former 4th Circuit Judge J. Michael Luttig—have provided strong letters of endorsement to the Senate Judiciary Committee, and two dozen attorneys who served in Republican administrations or labeled themselves as conservative—including former DHS Secretary Michael Chertoff and former New Jersey Gov. Christine Todd Whitman—penned a letter supporting her nomination. When she participated in a 2015 D.C. Circuit Historical Society judicial panel, then Judge Brett Kavanaugh of the D.C. Circuit introduced her as “a superb judge … someone with a wonderful disposition on the bench who is always well prepared and thorough in her rulings.”

However, some Republicans view Jackson as a radical leftist, and conservative groups such as Heritage Action for America regard Jackson as handpicked by the left to advance the progressive agenda. In a recent press statement, National Right to Life recalled Biden telling The New York Times in 2020 that he would choose a nominee that “will in fact support Roe v. Wade.”

Curiously, Jackson’s nomination application included an interesting 2007 story from The Washington Post in which Jackson recounts her impression of Justice Clarence Thomas when she clerked for Justice Breyer. Sitting across from Thomas at lunch one day, she found herself puzzled about him. She told the Post: Even though he “sounded” like her parents, “the lessons he tended to draw from the experiences of the segregated South seemed to be different from those of everybody I know.” Now, 14 years later, she may have the opportunity to share the bench with the “puzzling” man who will soon be the most senior justice.

As far as religious beliefs, Jackson’s remain unknown. In the acceptance speech for her nomination she thanked God and added, “My life has been blessed beyond measure, and I do know that one can only come this far by faith.” However, her highest ethic and one she has spoken about many times is her dedication to hard work—a value she says she and her husband have shared from the beginning and passed on to their daughters: “Do what you need to do before what you want to do.”

A good indication of Jackson’s judicial philosophy can be found in her own words published in a 2020 article in The Harvard Gazette: “I am passionate about making sure that people who are powerless in our society and are being mistreated are heard by the system and are able to get their grievances heard and are treated fairly. … Fairness on a fundamental level, no matter who you are, no matter how much money you have or how little money you have or whatever your circumstances, is crucial and is at the core of who we are and who we should be as a society.”

How will her passion play out in future rulings? How will she define the powerless: Pre-born child or pregnant woman? Crime victim or minority defendant? Only time will tell.

With an evenly divided Senate and Vice President Harris able to cast a tie-breaking vote, Jackson’s confirmation is all but assured even without a single GOP vote. How her presence will shape the future of the court and the future of American life remains to be seen, but shape them she will—regardless of who occupies the White House. History has shown a lone dissenting opinion today can decades later become the majority’s rule, and at age 51, Jackson likely has plenty of time to make her mark.