In her first term, Judge Ketanji Brown ‘came to play Jackson’

From her first week on the Supreme Court bench in October to the last day of the term ending last week, Justice Ketanji Brown Jackson did something remarkable for a junior judge: She established herself as a distinctive voice on the court.

“She was not intimidated by her surroundings or the historical significance of her appointment,” she said Melissa Murray, a professor of law at New York University. “She came to play.”

Other justices have said it took them years to gain a foothold in the courthouse, but Judge Jackson, the first black woman to serve on the Supreme Court, wasted no time.

Chief Justice John G. Roberts Jr. did not write his first solo dissertation in a disputed case to 16 years into his tenure. Justice Jackson issued three such an dissenting opinions in her first term.

“Justice Jackson has really taken off,” he said Pamela S. Karlan, a professor of law at Stanford. “And the lines between her and the majority are pretty sharply drawn on criminal justice issues and racial justice issues.”

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, passed after the Civil War and intended to protect formerly enslaved black people. “That’s not a race-neutral or race-blind idea,” she said.

By focusing on the amendment’s original meaning, she employed a conservative method of pushing for a liberal result. When the court issued her 5-to-4 decision in the event, in terms of voting rights in Alabama, she was on the winning side.

During her confirmation hearings, Judge Jackson, to the surprise of some, stated that she was an originalist, meaning she interprets the Constitution based on how it was understood at the time it was passed. “I look at the text to determine what it meant to those who drafted it,” she said.

But Justice Jackson’s originalism has an undeniably progressive orientation, one that takes into account not only the original Constitution, but also the three transformative amendments passed in the aftermath of the Civil War.

“In her first term on the bench, Judge Jackson challenged the dominant conservative narrative of the Constitution, ordering constitutional history to make it clear that our national charter requires meaningful equality and supports a truly thriving multiracial democracy,” he said. Elizabeth Wydra, president of the Constitutional Accountability Center, a liberal group. “This could mark a new chapter in court, where we see a real, sustained challenge to the conservative originalism of the current supermajority, which is equally rooted in text and history.”

On the last day of term, after two days in which she and her two liberal colleagues suffered stabbing losses in 6-to-3 decisions on affirmative action, student debt and a clash between free speech and gay rights, Judge Jackson issued one last disagreement before the court’s summer break. The court should have accepted a challenge to an 1890 law disenfranchising felons that was the product of open racism, she wrote.

“The way she sees things, we are all inexorably trapped in a fundamentally racist society, in which the original sin of slavery and the historic subjugation of black Americans still define our lives,” Judge Thomas wrote, adding that “in her view, almost all of the outcomes of life can be unhesitatingly attributed to race.”

In a footnote her dissenting opinion, Judge Jackson dismissed the criticism. “Judge Thomas’s lengthy attack is in response to a dissent that I did not write,” she said, adding that his opinion “also demonstrates an obsession with race consciousness that goes far beyond my or UNC’s holistic understanding that race is a factor.” may be impacting applicants’ unique life experiences.”

Judge Thomas’ opinion was striking, Professor Murray said. “Parts of his assent read like a black elder rebuking and chastising an erring young Turk who has publicly contradicted him and failed to show him due deference,” she said. “It’s almost like he expects racial solidarity from her and gets berated when it doesn’t happen the way he expected.”

The main dissent in the case, from Judge Sonia Sotomayor, was just as forceful as Judge Jackson’s. “But Thomas’s fire isn’t on Sotomayor,” said Professor Murray. “It’s reserved for Jackson.”

Justice Jackson is a member of a three-judge liberal minority, meaning she doesn’t typically have much power to influence the outcome of major cases. But sometimes she can make important contributions in the margins.

When the race-conscious admissions program challenge at UNC was contested in OctoberJudge Jackson asked a telling question about hypothetical job application essays — one from a fifth-generation white heritage and the other from a black college student whose ancestors had been enslaved.

“The first applicant could have his family background considered and valued by the institution as part of its consideration of whether or not to admit him,” she said, characterizing one aspect of the challengers’ argument, “while the second would He cannot, because his story is in many ways linked to his race and to the race of his ancestors.”

When the decision in the case was made 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 the impact of race on his or her life, be it through discrimination, inspiration or otherwise.”

Professor Murray said this was a reluctant response to Judge Jackson. “I don’t think John Roberts would have included that paragraph if she wasn’t astutely hypothetical,” she said.

All in all said Roman Martineza Supreme Court specialist at Latham & Watkins, “Justice Jackson had an impressive year on the court.”

“She was a vigorous and enthusiastic interrogator of oral arguments, wrote sharp opinions and developed an intriguing inter-ideological alliance with Judge Gorsuch in support of fairness and due process for the ‘little man’ in litigation against the government,” said Mr Martinez. .

In May, for example, the court decided unanimously that states that seize and sell private property to recover unpaid taxes violate the Constitution’s revenue clause if they withhold more than what taxpayers owed. Judge Neil M. Gorsuch issued a concurring opinion examining another possible violation of the Constitution: the Eighth Amendment’s ban on “excessive fines.”

The opinion was joined by only one other member of the court: Justice Jackson. So did a concurring opinion by Judge Gorsuch in a copyright dispute involving Andy Warhol, and from a dissenting opinion by Judge Gorsuch from an order to temporarily keep a pandemic-era immigration measure in place.

Justice Jackson is 52 and she will likely serve for decades to come. The composition and direction of the court will undoubtedly change. For now and for the most part, said Professor Murray, “she writes for the public and for a future where she may not always be dissenting.”