No ‘tiny voice’: Ketanji Brown Jackson’s outspoken first term

When Ketanji Brown Jackson was sworn in as the Supreme Court’s newest justice last summer, she joined a court riven along ideological lines and confronting some of the most serious challenges to its legitimacy in a generation.

She immediately showed her determination to make a mark as an unflinching dissenter — and, throughout her first year, she also displayed flashes of seeking cross-ideological consensus.

During a term largely defined by cases involving race, Jackson — the first Black woman to serve as a justice — repeatedly voiced a full-throated defense of race-conscious measures to remedy discrimination. As a former public defender, she proved closely attuned to the arguments of criminal defendants, perhaps more so than any other justice. And she took on a prominent role during the court’s oral arguments, speaking far more than any of her colleagues.

On certain issues, Jackson — President Joe Biden’s first and so far only Supreme Court nominee — also sowed the seeds of an unexpected alignment with Justice Neil Gorsuch, a Trump appointee. Broadly, though, Jackson, 52, remains a member of a three-justice liberal minority with little ability to sway the outcomes in the most divisive cases.

“I do think she’s bringing to the Supreme Court some new arguments and new ways of thinking about legal problems,” UCLA law professor Adam Winkler said. “She had an impressive first term, but her overall impact is limited by the fact that she's in the minority in the biggest, most high-profile cases. … Obviously, it’s hard for her to change the law in any significant way in a dissent.”

Still, Jackson used written dissents to lay out her priorities or call attention to what she saw as injustices. Her first opinion as a justice was a dissent from the court’s decision not to hear a death penalty case last November, just a month into the court’s new term. Jackson, noting that the defendant’s “life is on the line,” said the high court should have taken the case because lower courts applied too tough a standard when considering a request to overturn a guilty verdict.

Jackson’s second opinion came in another death penalty appeal a few weeks later, where she accused state courts of taking a series of legal shortcuts to expedite the execution of Kevin Johnson, a Black man on Missouri’s death row. Jackson noted that Johnson had evidence of racial bias and racially insensitive remarks on the part of prosecutors. “Now that evidence will not be considered on the merits by any court,” she wrote.

Justice Sonia Sotomayor joined both early dissents, but was the only member of the court to do so.

“What seems quite clear is that Justice Brown Jackson is bringing to her analysis and engagement precisely the qualities we heralded as unique,” Howard University law professor Sherrilyn Ifill said. “She is a Black woman Southerner, and she is a former criminal defense attorney.”

Jackson also made a bold early impression in her questioning style during the court’s in-person hearings. While fellow liberal Justice Elena Kagan often seems to try to deliver a skewering blow to a perceived weak spot in arguments pitched to her conservative colleagues, Jackson is more likely to take a sledgehammer to the base, challenging the underlying premise of a case.

Jackson did just that on her second day hearing arguments at the high court, when she questioned a lawyer for Alabama about whether the state’s congressional map gave minority voters a fair opportunity to elect their chosen candidates. Pushing back on the lawyer’s promotion of purportedly “colorblind” redistricting standards, Jackson emphasized how the U.S. government took explicit account of race in the wake of the Civil War to try to improve the economic and educational status of former slaves.

“I don't think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution, at what the framers and the founders thought about. … It became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way,” Jackson said.

“I don't think that the historical record establishes that the founders believed that race neutrality or race blindness was required,” she added.

Eight months later, the court sided with the minority voters in a surprise 5-4 decision in which Chief Justice John Roberts and Justice Brett Kavanaugh voted with the three liberals.

Some court watchers credited Jackson with trying to force the conservative justices to grapple with the initial rationale for the 14th Amendment and to square that with originalist legal principles that constitutional provisions should be given the meaning they would have had when they were adopted.

“She’s at least attempting to speak the language of the majority on the court,” said Thomas Berry, editor of the Cato Institute’s Supreme Court Review.

“She spoke at length about the history of the Reconstruction laws, the freedmen laws. She kind of made this originalist, historical case that those laws were race-conscious,” Berry said. “How likely she thought it was that she would actually convince her colleagues, I don't know, but she is certainly attuned to attempting to speak their language and make arguments on the terms that that the originalist majority has set.”

New justices often display a guarded approach during their early months on the bench, but Jackson jumped right into the fray, immediately becoming the most prolific questioner among the justices. She spoke more than 50 percent more words than the next-most loquacious justice this term, Sotomayor.

Supreme Court analyst Adam Feldman dubbed Jackson “the most active new justice at oral arguments probably in the history of the Court and definitely over the past 30+ years.”

Jackson’s style during arguments could reflect the nine years she spent as a federal trial judge, Berry said.

“You're the only one there, and so you're used to holding court by yourself and speaking without time limits,” he said.

Indeed, as a District Court judge, Jackson was known to indulge in protracted back-and-forth with lawyers in her courtroom. A high-profile hearing she held in October 2019 on Congress’ power to force Trump administration aides to testify ran to nearly four hours. (After her nine years on the District Court, Jackson also spent a one-year stint on the D.C. Circuit federal appeals court before Biden elevated her to the Supreme Court.)

Jackson’s backers said they were delighted that Jackson dispensed with the diffidence many new justices show in their initial outings.

“My initial reaction is: I am so glad she’s there,” said Berkeley Law professor Khiara M. Bridges.

Bridges said Jackson has managed to command attention on the high court bench even though her voice is hardly stentorian.

“It’s kind of a tiny voice, the type of voice people would ordinarily talk over and dismiss because it’s tiny, but she uses it to great effect,” the professor said.

Jackson also seems to be staking out somewhat different ground than her predecessor and mentor, former Justice Stephen Breyer. While she appears to share his skepticism about the death penalty, thus far, she has not always shown the same deference the Clinton appointee often gave to the government in cases involving criminal defendants or the operation of the federal bureaucracy.

Whether Jackson’s courtroom expositions on the law managed to win over any of the six GOP-appointed justices is less clear. They sometimes looked frustrated when she embarked on a lengthy line of questioning after eight other justices had their go. Early on, Roberts passed her a note after she interjected a question during a period where the arguing lawyer typically gets to conclude his or her arguments without interruption.

Jackson authored six majority opinions in her first term, but none were in the most controversial cases. That’s not surprising given that the chief or the most senior justice in the majority typically assigns opinions, and the assignments for new justices are often cases other justices perceive as dull.

Only two of Jackson’s majority opinions drew dissents and only one — about the rights of Medicaid patients to bring federal lawsuits over alleged abuse or mistreatment in nursing homes — was seriously contested.

But Jackson is certainly not conflict-averse. In an important case about the rights of labor unions, she was the lone dissenter in an 8-1 split — an unusual position for a first-term justice. And in the biggest decision of the term — the case effectively ending affirmative action in higher education — Jackson penned an impassioned dissent that provoked an extraordinarily forceful response from Justice Clarence Thomas, the court’s other Black justice.

To the extent Jackson is struggling to find common ground with her conservative colleagues in the major cases, she is not alone. Her fellow liberals, Sotomayor and Kagan, also found themselves alone on the losing side in many of the court’s most significant cases.

Still, Jackson was in the majority slightly more than either of the other liberal justices: She agreed with 84 percent of the court’s decisions, compared with 82 percent for Sotomayor and 80 percent for Kagan, according to the website Empirical SCOTUS.

Jackson also turned heads by aligning with Gorsuch, one of the court’s most conservative members, in a series of cases.

In a concurring opinion in May, Gorsuch signed on as Jackson warned that the IRS does not have “boundless authority” to demand bank records without telling taxpayers who are under investigation.

“Notice — and the concomitant right to judicial review — empowers persons whose information is at stake to enlist assistance from the courts, as needed, to prevent the agency from overreaching,” Jackson wrote.

A few days later, Jackson joined an opinion Gorsuch wrote lamenting the treatment of a former Minnesota homeowner, Geraldine Tyler. Her residence was seized and sold over an unpaid $15,000 tax bill; then the county kept the remaining value of her home, about $25,000.

Gorsuch and Jackson appeared alarmed by a District Court judge’s suggestion that the confiscation was a useful deterrent to homeowners’ falling behind on their tax bills.

“Economic penalties imposed to deter willful noncompliance with the law are fines by any other name,” Gorsuch wrote in his concurrence, which was joined by Jackson alone. “And the Constitution has something to say about them: They cannot be excessive.”

Lawyers say Jackson’s background as an appellate lawyer for a federal defender’s office and Gorsuch’s libertarian instincts sometimes intersect.

“Both [cases] you can say broadly are about individual rights versus the state, and what sort of safeguards are in place when an individual goes up against the state in some sort of administrative procedure where the individual might not have a lot of safeguards or where it might be particularly important not to eliminate some safeguards that either the law or the Constitution gives them,” Berry said.

“She definitely seems to have an unusual focus on the little guy or the common man — not only in criminal defendants’ rights cases but in some of the opinions where she sided with Gorsuch,” Winkler added.

The first sign of a Gorsuch-Jackson alignment came in December, when Gorsuch dissented along with the three liberal justices as the court stepped in to block a judge’s order to end the pandemic-related Trump-era immigration limits that came to be known as Title 42. Sotomayor and Kagan did not explain their decisions to dissent, but Jackson notably signed on to a Gorsuch opinion that inveighed against continued invocation of the public-health crisis to justify emergency actions by state, local and federal governments.

“The current border crisis is not a COVID crisis,” Gorsuch opined, joined by Jackson. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”

Jackson’s background as a criminal defense attorney has informed her rulings not only in criminal cases and tax investigations, but even in business-focused cases turning on highly technical issues like state jurisdiction over corporations registered in other states.

In a case decided last week involving the Norfolk Southern railroad’s effort to avoid being sued in Pennsylvania, the court divided 5-4 along unusual lines, with Gorsuch upholding the right to sue the railroad in the Keystone State. Jackson and Sotomayor joined Gorsuch and two of the court’s staunchest conservatives, Thomas and Samuel Alito, in ruling against the company. Kagan joined with Roberts, Kavanaugh and Amy Coney Barrett in dissent.

Jackson, however, issued a solo concurrence emphasizing how criminal defendants are routinely asked to waive rights at least as important as the railroad’s in the course of accepting plea deals that are the most common outcome of criminal cases in federal court.

“In other areas of the law, we permit States to ask defendants to waive individual rights and safeguards” like the right to a jury trial, a speedy trial and the right against self-incrimination, Jackson observed. “When defendants do so, we respect that waiver decision and hold them to that choice, even though the government could not have otherwise bypassed the rules and procedures those rights protect.”

Jackson went on to declare that there was no reason to put the railroad’s rights “on a pedestal” compared with the rights of individuals caught up in the criminal justice system.