Ketanji Brown Jackson’s Confirmation Feels Both Pathbreaking and Hopeless
By Jamal Greene
"Mr. Greene is a law professor at Columbia who clerked for Justice John Paul Stevens.
With the curtain down on what was, by most accounts, a virtuoso performance at her Senate hearing, Judge Ketanji Brown Jackson is poised to vindicate a promise. Barring a shock, and despite Republican efforts to peel off a conservative Democrat or two, Judge Jackson will become the first Black woman Supreme Court justice.
Judge Jackson will also be the first public defender to become a justice and the rare mother of school-age children on the court. We are told that these diverse perspectives are much needed on the nation’s highest court.
But the promise of this appointment conceals a paradox. The Supreme Court that Judge Jackson joins will hold the same 6-to-3 conservative majority it does today. For all the intellectual candlepower and richness of perspective she will bring the court, she doesn’t have the votes.
This means that for all the misleading dog whistles we heard about critical race theory and the coddling of criminals — but also for all the uplifting rhetoric about historic firsts we heard from Senator Cory Booker and others — this appointment might not matter very much, when we get down to brass tacks. The nomination somehow feels both hugely consequential and perfectly meaningless, at once pathbreaking and hopeless.
Judge Jackson’s first task, then, will be to figure out how to wield influence without wielding power. Sonia Sotomayor and Elena Kagan, the other two justices appointed by Democratic presidents she will join on the court, model two different approaches she might consider.
Justice Sotomayor has become the court’s progressive conscience. In one case, Trump v. Hawaii, she wrote a solo dissent comparing the court’s decision upholding the Trump administration’s ban on travel from a group of mostly Muslim-dominant countries to the World War II internment of Japanese Americans. In another, Utah v. Strieff, in which the court upheld a suspicionless police stop, Justice Sotomayor made a point of the racially disparate effects of the majority’s holding. “For generations,” she wrote, “black and brown parents have given their children ‘the talk’— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”
Dissents of this sort are written as much for the lay public as for a legal audience. By highlighting the practical stakes of seemingly technical decisions, the dissenter makes an implicit appeal to the public to push for political change. “Look at my dissents,” Justice Sotomayor told the American Bar Association last September. “I can’t change law, but you can. You can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”
The hope is that the minority view later becomes the law, spurred by the power of the dissent’s moral example. In one famous instance of this strategy, the “Great Dissenter” John Marshall Harlan’s plea for a “color-blind” Constitution failed to attract a single vote in Plessy v. Ferguson, but he was prescient in declaring that the case “will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”
One downside to this kind of legacy dissent is that it can alienate potential allies on the court. No one wants to be likened to a bigot, and a lone wolf’s effort to raise public alarm can come to feel, to the other side, more like crying wolf.
Justice Kagan has been more apt than Justice Sotomayor to play the good cop, whether it’s hunting deer with Antonin Scalia or breaking bread with conservatives at key strategic moments. She and Stephen Breyer surprised many, for example, when they joined Chief Justice John Roberts’s opinion limiting the Affordable Care Act’s Medicaid expansion, a move that some court watchers saw as an effort to hold on to the chief justice’s vote to preserve the law’s health insurance mandate.
I don’t know which model of influence Judge Jackson will pursue — she has been a trial-court judge for most of her nine-year judicial career, with no need to pull her judicial colleagues to her position — but she gave us an important hint this week. The justice she chose to quote in her opening statement wasn’t John Marshall Harlan or Thurgood Marshall but Justice Breyer, whom she clerked for from 1999 to 2000. And the message she chose to emphasize wasn’t one of combat but of conciliation:
“What is law supposed to do, seen as a whole?” Justice Breyer said on the day of his nomination. “It is supposed to allow all people — all people — to live together in a society, where they have so many different views, so many different needs, to live together in a way that is more harmonious, that is better, so that they can work productively together.”
This sounds Pollyannish at first blush. This court’s Republican-appointed majority seems poised to press its advantage aggressively, hearing cases this term and next that could upend the law around abortion, affirmative action, gun rights, voting rights, religious freedom and the power of administrative agencies, a startlingly precise wish list of conservative judicial priorities over the past four decades. Hunting-rifle diplomacy can only get you so far with this court.
What’s more, based on the popular ideological scoring system created by the political scientists Andrew Martin and Kevin Quinn, the court’s swing justice is Brett Kavanaugh, a Donald Trump nominee who helped draft the Starr Report, worked for the George W. Bush campaign during the Bush v. Gore litigation, and whose words at his confirmation hearing — “What goes around, comes around” — struck many observers as a promise of vengeance on his political enemies. The idea that a liberal justice should seek to forge an alliance with such a person seems to misread the room.
And yet, there is hope. Sometimes a court minority’s best ally isn’t the sharpness of its words or the charisma of its public appeal, but rather time. Going out for beers isn’t going to turn a conservative justice liberal (or vice versa), nor should we expect it to. Justices are entitled to their views. What we do have a right to expect, though, is that when a court majority pushes the Constitution toward its favored ideological pole, it does so slowly, with a nudge instead of a shove.
Chief Justice Roberts aligned himself with this “minimalist” approach early in his tenure. “If it is not necessary to decide more to a case,” he told an audience at Georgetown, “it is necessary not to decide more to a case.” He has in many ways remained true to this promise of restraint, resisting bolder rulings urged by Justices Scalia, Clarence Thomas, Samuel Alito, and Neil Gorsuch in a wide range of cases from the Affordable Care Act to campaign finance to abortion rights and religious freedom. Claims that the chief justice is a “RINO” result less from his progressive instincts — he is most definitely not a progressive — than from his caution about moving the court too far, too fast.
For all the notoriety he generated at his confirmation hearing, Justice Kavanaugh clearly shares some of these instincts. As a lower court judge, he had a chance to vote to strike down the individual mandate of the Affordable Care Act, a top Republican priority at the time, but instead he wrote a solo opinion rejecting the plaintiffs’ challenge on procedural grounds. Before he became a justice, he gave a nuanced speech at Notre Dame betraying his discomfort with the kinds of absolutist approaches to the constitutional text that Justice Gorsuch and Justice Thomas have espoused on the bench and in their own writings.
And just this month, Justice Kavanaugh refused to invalidate decisions by the state Supreme Courts in North Carolina and Pennsylvania rejecting gerrymandered congressional district maps proposed by their states’ Republican legislatures. Justice Kavanaugh has expressed sympathy with the radical “independent state legislature” theory that Justices Thomas, Alito and Gorsuch would have relied on to strike down those rulings, but he still declined to intervene on procedural grounds.
As a longtime trial court judge, Judge Jackson is well positioned to try to bring out Justice Kavanaugh’s latent instinct for slowing things down through procedural machinations. Using legal technicalities to buy time — what the legal scholar Alexander Bickel once called “the mediating techniques of ‘not doing’ ” — isn’t just a cynical ploy to run out the clock on political rivals. It’s a tool for ensuring that when the court moves the law in important ways, it does so with adequate notice to, and buy-in from, the American people. When the court fires shots across the bow instead of straight at the hull, it gives “We the People” a chance to respond through politics, the ultimate recourse of a self-governing people.
Time, in other words, is the tribute a court pays to diversity. It’s an acknowledgment that five elite lawyers can never, and should never, be too sure that their vision of the law is right, and others wrong. There may be no way to stop the Supreme Court majority from having its way, but if Judge Jackson can help make sure it doesn’t happen all at once, she will have made the promise of her appointment real."
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