Judge Ketanji Brown Jackson (1970- ), lawyer and judge. Ketanji Onyika Brown was born in Washington D.C. and grew up in Miami. Her father worked as a teacher before attending law school and becoming chief counsel for the county school board, while her mother was a school principal and an uncle served as Miami’s chief of police. “My parents set out to teach me,” she later recalled, “that unlike the many impenetrable barriers that they had to face, my path was clear. If I worked hard and believed in myself, I could do anything or be anything I wanted to be.” At her predominantly white high school, she served as class president, acted in school plays despite opposition from a teacher who did not want her to take a part written for a white actor, and won a national oratory contest even as several judges made critical comments about her first name. She enrolled at Harvard over the objections of a guidance counselor who wanted her to choose a less competitive university, majoring in government. While in college she took part in protests against the lack of black professors and against school officials allowing a white student to hang a Confederate flag from his dorm window, but she also advised other black students to focus on their main goals, saying that “what the student who had hung the flag really wanted: For us to be so distracted that we failed our classes and thereby reinforced the stereotype that we couldn’t cut it at a place like Harvard.” One black classmate remembered her as a “person trying to find the middle ground” and “always asking, ‘What are the facts we can use to persuade,’” while another said “Ketanji was a lawyer before she went to law school, always thinking of every side of an issue.” She also took part in improv theater and wrote a senior research thesis about how the criminal justice system unfairly pushed defendants towards accepting plea deals. After graduating with honors, she worked as a reporter and researcher for Time magazine, then enrolled at Harvard Law School, where she served as editor of the Harvard Law Review and graduated with honors in 1996.
Like many other distinguished law school graduates, Jackson spent several years as a law clerk for federal judges: one on the U.S. District Court, one on the U.S. Court of Appeals, and then for U.S. Supreme Court Justice Stephen Breyer from 1999 to 2000. Her work with Breyer led her to engage with cases about abortion, separation of church and state, and LGBTQ rights. She then entered the private sector and worked for several prestigious law firms in Washington D.C. and Boston, taking on such clients as the Women’s Bar Association of Massachusetts, the League of Women Voters, and NARAL Pro-Choice America. In 2005 she became an assistant public defender, handling cases that went before the U.S. Court of Appeals for the D.C. Circuit and, in the words of the Washington Post winning “uncommon victories against the government that shortened or erased lengthy prison terms.” In 2009 President Barack Obama nominated her as vice chair of the U.S. Sentencing Commission, the federal agency that creates sentencing guidelines for federal crimes. During her four years in that role, the Commission amended its guidelines to correct the disparity that gave longer sentences to (predominantly black) crack cocaine dealers than to (predominantly white) powdered cocaine dealers. Her career on the bench began in 2012 when Obama nominated her to the U.S. District Court for the District of Columbia; the Senate confirmed her with no official opposition, and she was sworn in by her former boss Justice Breyer.
From 2013 to 2021, Judge Jackson wrote more than 600 opinions for the D.C. district court, gaining a national reputation as a careful, brilliant decisionmaker who held liberal views but followed the law rather than a desired political outcome. One such case was Pierce v. District of Columbia (2015), in which she ruled that the D.C. Department of Corrections failed to accommodate the needs of a deaf inmate under the Americans with Disabilities Act; in her words, prison officials “figuratively shrugged and effectively sat on their hands with respect to this plainly hearing-disabled person in their custody, presumably content to rely on their own uninformed beliefs about how best to handle him and certainly failing to engage in any meaningful assessment of his needs.” She came under consideration for the U.S. Supreme Court in 2016 when Justice Antonin Scalia died, but Obama ultimately nominated Merrick Garland. His choice became moot when the Republican-controlled Senate refused to even give Garland a hearing, hoping that a Republican would win that year’s presidential election and then fill the seat with a conservative judge. That did in fact happen, and now Jackson was called on to adjudicate cases under the Donald Trump administration. She and other federal judges frequently ruled against the new administration, which showed an unprecedented failure to follow established decision-making rules. When the Department of Health and Human Services terminated funding for teen pregnancy prevention programs without offering any explanation, Jackson ruled that this decision was arbitrary and capricious. In American Federation of Government Employees, AFL-CIO v. Trump (2018), Jackson struck down three of Trump’s executive orders that limited the power of labor unions. In Guam v. United States (2018), the U.S. territory of Guam had requested the Navy to help pay for environmental damage caused by a military chemical landfill, but the federal government asked to have the case dismissed. Jackson allowed the case to go forward, and although the D.C. Court of Appeals reversed her decision, the U.S. Supreme Court vindicated Jackson’s decision by allowing the suit to go forward. Her 2019 ruling in Center for Biological Diversity v. McAleenan (2019), on the other hand, dismissed a complaint by an environmental group that the Department of Homeland Security was violating environmental laws by building Trump’s border wall, not because Jackson supported the law but because the group had not met technical requirements for its suit. That same year, Jackson blocked the Department of Homeland Security’s decision to expand “fast-track” deportations because DHS had not followed proper policy. Her most famous decision, though, came in Committee on the Judiciary of the U.S. House of Representatives (2019). As the U.S. House of Representatives investigated Trump for withholding aid from the Ukrainian government unless it investigated Joe Biden’s son, Trump ordered former White House Counsel Don McGahn to not comply with a House subpoena to testify. In a 118-page decision, Jackson ruled that senior-level presidential aides subpoenaed by Congress had to testify even if the president ordered them not to, writing that “per the Constitution, no one is above the law” and “the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
Jackson gained increased public attention in 2020 due to that year’s presidential election. Candidate Joe Biden was struggling to become the Democratic nominee, losing two of the first three state primaries. South Carolina was the next state to hold a primary and the first with a large black population, and Biden announced that if elected president he would nominate a black woman to fill the first Supreme Court seat that came open. Jackson’s name was one of several mentioned as a possible nominee. Biden won the South Carolina primary, the Democratic nomination, and the general election, and because his party also won a majority in the Senate, he was able to get forty federal judges confirmed. This was the largest number of any president since the 1980s, and the judges themselves were the most diverse in U.S. history, including the first openly LGBTQ woman, the first Muslim American, and more black women than any other president. The latter group included Jackson, who was nominated to the D.C. Court of Appeals in March 2021. This is generally considered the second-most important federal court in the country, second only to the U.S. Supreme Court, and many of its members have eventually become members of the Supreme Court. During Jackson’s confirmation hearing she reflected back on her work as a public defender and trial judge, noting that because many of her clients had limited understanding of the legal process, when she sat on the bench she took “extra care” to make sure that defendants were aware of what was happening; in her words, “I think that’s really important for our entire justice system because it’s only if people understand what they’ve done, why it’s wrong, and what will happen to them if they do it again that they can really start to rehabilitate.” Some Republican senators objected to her nomination because of her rulings against the Trump administration, but others supported her, and she was confirmed by a vote of 52-46 in June 2021. Her first decision struck down a Trump-era restriction on the bargaining power of unions. She also served on advisory boards at Harvard, the American Law Institute, and several K-12 schools, as well as a judge for mock trials at Drexel University, the Shakespeare Theatre Company, and the Historical Society of the District of Columbia. Jackson continued to draw attention as a potential member of the Supreme Court, based in part on events of the previous decade. As Justice Ruth Bader Ginsburg’s health declined in the early 2010s, progressives encouraged her to retire so that Obama could fill her seat, fearing that if she died with Republicans in control of the Senate and/or the presidency, her seat would be filled by a judge who would undo her legacy and help take the Supreme Court in a right-wing direction. Ginsburg did not retire, and her death in 2020, along with the other seat that Jackson had been considered for in 2016 and a third seat that opened up, enabled conservatives to take a 6-3 majority on the Court. Remembering that lesson, in 2021 progressives called on 83-year-old Justice Breyer to step down so that history would not repeat itself and conservatives would not increase their majority. In January 2022, Breyer announced that he would retire later that year.
A month later, Biden announced that Judge Ketanji Brown Jackson was his choice to replace Breyer, saying “For too long, our government, our courts haven’t looked like America. And I believe it’s time that we have a Court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.” This was historically significant for an institution that had long been one of the least diverse in American society. The ninety-five justices confirmed between 1789 and 1966 were all white men, including five of Jewish faith. In 1967 Thurgood Marshall became the first black justice, and in 1991 he was replaced by Clarence Thomas, who shared his racial ancestry but whose judicial philosophy sharply differs from that of most black legal experts. The first woman justice was confirmed in 1981 and has been followed by five others. The first and only Latinx justice, Sonia Sotomayor, was confirmed in 2009. There have never been any justices of Asian or Native American ancestry, of religious faith outside the Judeo-Christian traditions, or of known LGBTQ identity. In short, of the 115 justices who have served in the Supreme Court’s 233 years of existence, 108 were or are white men, and Jackson would be only the third African American, the fourth of any racial minority background, and the seventh woman of any race. She would also be the first since Marshall with significant experience representing criminal defendants. Jackson made reference to this legacy in her first public remarks as a nominee, noting that she shared a birthday with Constance Baker Motley, who in 1966 had become the first black woman to serve as a federal judge; in Jackson’s words, “Today, I proudly stand on Judge Motley’s shoulders, sharing not only her birthday but also her steadfast and courageous commitment to equal justice under law.” Vice President (and fellow attorney) Kamala Harris echoed this in her own remarks several days later at the commemoration of the 1965 Selma March, saying “As she makes history, Judge Jackson, like all of us, stands on the shoulders of giants. She and we are their legacy.” Support for Jackson’s confirmation came from across the political spectrum, including fellow attorneys and judges, law enforcement agencies, public education groups, and politicians. Some were especially hopeful about her background as a public defender and relative of a convicted felon, given that the Supreme Court often has to consider matters of criminal law but is dominated by people of privilege with no personal experience in these matters. A number of conservatives urged Republicans to support her confirmation because it would do nothing to damage their Court majority and would avoid reinforcing their image of being hostile towards minorities. This advice was not taken. Republican lawmakers claimed that she had helped increase crime rates by defending accused criminals. One of the twenty-seven Republican senators who had supported her previous judicial confirmations now claimed that she came from the “radical Left.” Others complained that because Biden had promised to nominate a black woman, white men were being victimized by reverse racism and she was an unqualified beneficiary of affirmative action. The right-wing television host Tucker Carlson mocked her name and demanded to see her law school admission scores. As of March 2022, her nomination is pending before the Senate Judiciary Committee, which has the responsibility of considering all nominations to federal judges. As with all current Senate committees, the Democrats currently have a majority on the Judiciary Committee. If it votes to recommend her, she will go before the full Senate.
David Brodnax, Sr., Professor of History, Trinity Christian College
