Supreme Court Justice Ketanji Brown Jackson made her liberal imprint on the nation’s highest court as she finished her historic first term last month.
Justice Jackson, who was nominated by President Joe Biden and confirmed by the Senate for the Supreme Court in April 2022, during her first term dissented alongside the court’s other two liberal justices, Sonia Sotomayor and Elena Kagan.
The court issued 58 opinions in cases argued in the term that began in October 2022. Justice Jackson wrote five majority opinions in those cases.
One of them was Santos-Zacaria v. Garland. The court unanimously held in favor of a transgender illegal immigrant from Guatemala seeking asylum, claiming he would face persecution if forced to return to his home country. The decision gave the person concerned another opportunity to fight deportation.
Another case was Health and Hospital Corp. of Marion County v. Talevski, in which the court ruled 7–2 that Medicaid enrollees can sue when state officials violate their rights. Four conservative justices joined Justice Jackson’s majority opinion.
Justice Jackson also wrote the court’s unanimous opinion in Delaware v. Pennsylvania, ruling against Delaware, Mr. Biden’s home state. The court ruled that Delaware could not seize unclaimed funds left over from abandoned money orders purchased in other states.
Justice Jackson joined Justices Kagan and Sotomayor in dissenting from Biden v. Nebraska, the ruling striking down Mr. Biden’s student loan forgiveness program; 303 Creative LLC v. Elenis, where the court ruled in favor of a website designer who refused to create a wedding website for a same-sex couple; Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College, in which the court found affirmative action in colleges and universities was unconstitutional; and Sackett v. EPA, which reined in the EPA’s power to regulate wetlands.
‘A Solid Expected Vote’
Justice Jackson was “a solid expected vote on the left of the court in politically-salient cases” who will not be “influential in terms of getting some of her colleagues on the right to come over,” Manhattan Institute constitutional scholar Ilya Shapiro told The Epoch Times.
“But she’s firmly slotted in on that side of the court,” he said.
Curt Levey, an attorney who is president of the Committee for Justice, a conservative legal advocacy nonprofit, said Justice Jackson voted “predictably on the big ticket cases.”
“She was a little bit less to the left than [Justice Sonia] Sotomayor,” Mr. Levey told The Epoch Times.
“I think that Ketanji Brown Jackson is a solid progressive, but not a crazy progressive.”
“On the big hot-button cases, the Democratic appointees on the court have long voted together—even ones that we would think of as moderate. [Justice Elena] Kagan and [former Justice Stephen] Breyer—on the big issues like this, they vote together. So, to have expected that Jackson would in any way differ from that pattern would have been completely unrealistic.”
Justice Jackson joined her fellow liberal justices and most in the conservative bloc—which includes Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—on cases involving redistricting (Moore v. Harper and Allen v. Milligan), Native American adoptions (Haaland v. Brackeen), and immigration (United States v. Texas).
Look no further than Justice Jackson’s dissent in the case where the Supreme Court deemed affirmative action in higher education to be unconstitutional. In it, she defended the racially discriminatory system, calling it “holistic.”
“Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens,” she wrote.
“They were created in the distant past but have indisputably been passed down to the present day through the generations,” the justice continued. “Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal.”
Additionally, Justice Jackson pointed to American history, echoing the left’s talking points about systemic discrimination against blacks in the United States.
Relatedly, Justice Jackson said during oral arguments in an Alabama redistricting case—Allen v. Milligan, where she ended up being in the majority—that “the entire point” of the 14th Amendment “was to secure rights of the freed former slaves” even though it safeguards the rights of everyone no matter their race.
The 14th Amendment
Mr. Levey addressed Justice Jackson’s comments about the 14th Amendment.
“There’s certainly no question that when the 14th Amendment was enacted, we had just come out of slavery and the Civil War, and that that is what they were focusing on. But if you look at the actual text of the 14th Amendment, it does not limit itself to any particular race.”
“Even the most liberal courts—the [Chief Justice Earl] Warren and [Warren] Burger courts—never said that the 14th Amendment doesn’t protect white or Asian people,” he said.
Chief Justice Warren served from 1953 to 1969; Chief Justice Burger from 1969 to 1986.
During oral arguments in SFFA v. University of North Carolina, the Harvard companion case, Justice Jackson suggested that colleges and universities need to use race in the admissions process.
“You’re saying that we can challenge the use of race as a factor without explaining how it’s factoring in and how that harms our members,” she said.
“So why is it that race is doing anything different to your members’ ability to compete in this environment?” the justice asked. “They can still get extra points. You know, the points are not being tallied. There’s no goal. There’s no target. But, in any event, they can get points for diversity even in this environment.”
She challenged the plaintiff’s claim that UNC discriminates against Asian and white applicants and claimed that embracing racial diversity is something to be lauded.
Justice Jackson advocated for the left’s pro-racial preference position in the case. She wrote that “just because somebody checks a box—what if they check the box and the university sees that but doesn’t look at it, doesn’t take it into account in any way in the application? Do we have a constitutional violation just because the student voluntarily—voluntarily—said, I’m an African American, but that never comes into play?”
Justice Clarence Thomas, the second black justice to sit on the nation’s highest court, took on Justice Jackson, the third, in his separate opinion concurring with the majority “to offer an originalist defense of the colorblind Constitution.”
He added that he was writing to “clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution, and to emphasize the pernicious effects of all such discrimination.”
‘Worldview Falls Flat’
“Justice Jackson’s race-infused worldview falls flat at each step.”
“Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives,” Justice Thomas wrote.
Mr. Levey said the dissents of Justice Jackson and Justice Sotomayor in the case contained rhetoric “that can both be summarized as saying this is a systemically racist country.”
“We can debate whether that’s true or not, but the Supreme Court has been very clear that while you can discriminate in order to remedy your own past discrimination … you can’t discriminate to remedy societal discrimination, and so much of what Sotomayor and Jackson talked about in their dissents really goes to that issue of societal discrimination.”
Although conservatives have been critical of both justices’ dissents, Justice Sotomayor’s dissent “was less respectful” and had “more of a defiant tone” than Justice Jackson’s, he said.
“Whereas, Jackson was more respectful. And that’s one of the reasons that I think Jackson is a little bit less far to the left than Sotomayor.”
In 303 Creative LLC v Elenis, where the court ruled for the website designer, Justice Jackson was in the minority.
As in the affirmative action case, Justice Jackson’s comments during the oral argument suggested she was against the plaintiff. She tried to inject the issue of race into the case by raising a hypothetical about a photographer refusing to take “It’s a Wonderful Life”-themed photos of non-white people.
“I want to do video depictions of ‘It’s a Wonderful Life,’ and knowing that movie very well, I want to be authentic, so only white children and families can be customers for that particular product,” Justice Jackson said.
But her example was flawed and showed she didn’t know the movie as well as she claimed. The classic 1946 film, which was not about race, did feature a black character.
Roger Severino of the Heritage Foundation wrote on Twitter that the justice made an “outlandish” analogy in the form of a “white supremacy allegory.”
“KBJ is suggesting ‘It’s a Wonderful Life’ can be used as some sort of white supremacy allegory. Even as a hypothetical, it is beyond outlandish and something only someone steeped in critical race theory would come up with,” Mr. Severino wrote.
‘Premature to Judge After One Term’
Josh Blackman, a constitutional law professor, told The Epoch Times that Justice Jackson made herself known on the highest court in the land.
“I think Justice Jackson has come out very forcefully in her first term to articulate a progressive view of the law. She has written many dissents, including dissents where the court denied review in a case,” he said.
“She has also been very active during oral argument,” Mr. Blackman said. “I don’t think she has had much of an impact on the court’s deliberations, but has had an oversized impact on media coverage.”
Of course, that doesn’t mean that Justice Jackson’s approach won’t evolve on the bench.
Howard Slugh, an attorney who has litigated constitutional issues, told The Epoch Times that the first year of any justice’s tenure is a transition period and, therefore, it should not be assumed that how they rule in their initial term will set the tone of their jurisprudence the rest of the time they are on the bench.
“It is entirely reasonable that it takes a term to get used to being on the Supreme Court. Justices may be more tentative their first term while acclimating to the Court and how to interact with their new colleagues,” he said.
“Additionally, 50ish cases is a pretty small sample size. It’s just premature to judge someone after one term in a difficult and new situation,” Mr. Slugh said.
“It is fair to critique a justice’s work in that term with the understanding that it is a first term, but it would be foolish to think that you can really get a feel for what a justice’s jurisprudence will look like over the next few decades after their first term.”
This article by Jackson Richman and Matthew Vadum appeared July 31, 2023, in The Epoch Times.
Photo: Supreme Court Justice Ketanji Brown Jackson