Justice Jackson Unafraid to Speak Up, Go It Alone in First Term

Ketanji Brown Jackson wrapped up her first US Supreme Court term by excoriating conservative colleagues for voting to strike affirmative action in higher education, calling their decision detached “from this country’s actual past and present experiences.”

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” the court’s first Black female justice wrote in her dissent in Students for Fair Admissions v. Harvard. “But deeming race irrelevant in law does not make it so in life.”

Her uncompromising style in that dissent was evident throughout her inaugural term, in which she skirted norms both on and off the bench. She spoke up frequently, embraced celebrity, and showed a willingness to go it alone when necessary, including in the first solo dissent by a rookie justice in more than 30 years.

“She was comfortable from the get-go,” said Covington’s Beth Brinkmann, who worked with Jackson in private practice before she became a federal trial court judge a decade ago.

Vocal Justice

From the outset on the Supreme Court, Jackson, 52, made clear she had no intention of laying low and seeing how things operate as some new justices tended to do in their first terms.

Jackson jumped in during her second day of oral argument, offering her own take on the historical context in a case in which the GOP-challengers were urging the court to adopt a race-neutral test for analyzing voting maps.

In an analysis that caught the attention of court watchers and would prove decisive in Allen v. Milligan, she said history shows the whole idea of the 14th Amendment’s equal protection clause was to make up for past discrimination and ensure Black citizens had the same rights as whites.

“That’s not a race-neutral or race-blind idea,” Jackson said.

The court ultimately agreed with Jackson in a surprise ruling last month in which Chief Justice John Roberts and Brett Kavanaugh joined Jackson and her liberal colleagues to reject the color-blind argument, 5-4.

Jackson spoke more than any other justice during argument this term, uttering 57% more words than the second-most talkative justice, her liberal ally Sonia Sotomayor, according to data compiled by Adam Feldman for his Empirical SCOTUS blog.

No “justice has ever jumped into the oral argument fray with such initiative,” Feldman wrote.

Her questions were meant to get to the heart of the legal issues and “the moral stakes of the case, too,” said high court veteran Deepak Gupta of the boutique firm Gupta Wessler.

That concern for how the law affects everyday Americans is a byproduct of her professional background, said Matt Ginsburg, the general counsel of the AFL-CIO, which supported Jackson’s nomination by Joe Biden.

Jackson “represented poor and working people in court” as a public defender, a job no other justice ever held before, Ginsburg said.

She also served on the US Sentencing Commission, which is responsible for setting sentencing policy for the criminal justice system, and was an Obama appointee to the US District Court for the District of Columbia.

Ginsburg pointed to another Supreme Court case about employment protections for high-income workers in which Jackson highlighted the importance of looking at not just the earnings the worker was pulling in, but the timing of it, too.

“What he has to know is how much is coming in at a regular clip so that he can get a babysitter, so that he can hire a nanny, so that he can pay his mortgage,” Jackson said in Helix Energy Solutions Group, Inc. v. Hewitt. She was in the majority which ruled in favor of the oil worker seeking overtime pay.

Jackson is a justice who is thinking about how the court’s decisions “impact people who actually have to live by these rules,” Ginsburg said.

Blistering Dissents

Concern for the practical implications of the court’s rulings showed up in her opinion writing, too, particularly in her dissents.

In one notable example, Jackson filed the first solo dissent by a first-term justice since Clarence Thomas did so in 1991, according to Empirical SCOTUS’ Feldman.

Jackson went beyond the narrow legal issue in the case, Glacier Northwest, Inc. v. Int’l Brotherhood of Teamsters, to highlight what the ruling meant for what she called the “fundamental” right to strike.

“Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master,” Jackson wrote. Yet the court’s ruling “risks erosion of the right to strike.”

“The fact that she has to stand alone is undaunting to her,” said George Washington University Law School Dean Dayna Matthew.

When she needs to dissent, Jackson “does so emphatically and forcefully,” Matthew said.

Jackson wrote a separate dissent explaining her reasoning in just over half of the cases in which she was in the minority.

“She’s not going out of her way to build coalitions or join for the sake of journey,” said high court veteran Carter Phillips of Sidley Austin.

In several cases, Jackson found herself in unusual company, on different sides than her liberal colleagues and even several times in agreement with Donald Trump’s first appointee, Neil Gorsuch. This was particularly so when the matter involved what they viewed as government overreach.

Her background as a longtime federal trial court judge is doing “a lot of the driving,” said Erinn Martin, the director of nominations and cross-cutting policies at the National Women’s Law Center, which supported Jackson’s nomination.

More than eight years on the DC District Court means Jackson isn’t afraid to dig into the facts of a case and explain her decisionmaking in a way that some of her colleagues with only appellate, multi-member court experience may not be as comfortable with, Martin said.

Sotomayor is the only other current justice with experience as a trial court judge, in New York.

Jackson “brought substantially more years of practice experience and experience on the bench to her role than several of her colleagues,” said Kimberly Mutcherson, co-dean and professor of law at Rutgers Law School in Camden. Prior to her taking the bench, Jackson also had practiced for years at major US law firms as a litigator.

Her experience “shows in the care and complexity of her questioning during oral arguments and the very grounded and constitutionally sophisticated opinions she’s written in her short term on the Court,” Mutcherson said in an email.

Embracing Her Role

Sidley’s Phillips noted that Jackson appears as comfortable off the bench as she is on it.

Before the term began, Jackson participated in a spread in Vogue. She later reported that she kept $6,580 in designer clothing from the photo shoot by Annie Leibovitz.

In January, she announced plans to write a memoir, “Lovely One,” with Random House about her life story from growing up in Miami to her Senate confirmation to the Supreme Court in April 2022.

Toward the end of the term, Jackson spoke at law school commencement ceremonies at Boston University and American University, where she talked about lessons from a favorite reality television show, “Survivor.”

While alluding little to her maiden term, Jackson offered advice to students based on “Survivor” that might have provided insight into her own approach to the job.

“If you make the most of the resources you have, use your strengths to make your mark, and play the long game in your interactions with others, you will not only survive—you will thrive,” she said.