POLITICO
That time Jackson shredded Trump in a federal court ruling
By Josh Gerstein
Judge Ketanji Brown Jackson may not have a long paper trail of distinctive federal court opinions for her Supreme Court resume, but she does have one flashy ruling that liberals love: Her savaging of President Donald Trump’s sweeping claims of executive privilege.
Judge Ketanji Brown Jackson will undoubtedly change the high court’s makeup as its first Black woman justice.
Jackson, nominated for the Supreme Court by President Joe Biden on Friday, will undoubtedly change the high court’s makeup as its first Black woman justice. But legal experts say that when it comes to assessing whether she will shift the court ideologically the jury is still out.
Jackson’s backers say they’re confident she’ll be a reliable and forceful liberal voice on the Supreme Court, although there isn’t a whole lot in her rulings over nine years on the bench that reflects an identifiable judicial philosophy.
But a key factor buoying liberals is the relish—and flourish—with which Jackson took on former President Trump in a couple of high-profile cases during her time on the district court in Washington.
When the House’s lawsuit seeking to enforce a subpoena against former Trump White House Counsel Donald McGahn was randomly assigned to Jackson in 2019, the consensus among courtwatchers was that Trump was likely to be fileted. What emerged from Jackson was an 118-page jeremiad that did not mince words in dissecting Trump’s claim that his advisers had an absolute right to ignore Congressional subpoenas at his direction.
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote, dismissing the longstanding argument as “a fiction” and “a proposition that cannot be squared with core constitutional values.”
Beyond that decision and another in which Jackson blocked the Trump administration from expanding the use of expedited deportation proceedings, there are few rulings with clear political overtones.
“There’s very little there that can legitimately be characterized as radical. She’s a judge who takes pains to find and apply the law in an evenhanded manner with a balanced tone,” said Tomiko Brown-Nagin a constitutional law scholar and dean of the Harvard-Radcliffe Institute.
Republicans seemed to concede that there wasn’t a lot in Jackson’s judicial record to view as outlandish or extreme. Senate Minority Leader Mitch McConnell noted that Jackson has only authored two opinions on the D.C. Circuit since she joined that court eight months ago. But he quickly said what makes him most concerned about Jackson is that liberals support her.
“Judge Jackson was the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and the structure of the court itself,” McConnell said.
Indeed, just as Republican presidents now routinely look beyond a nominee’s rulings or writings to assure themselves of his or her conservative bona fides, Democratic presidents and liberal groups do the same.
Their sense that Jackson would be an unapologetically left-leaning justice stems in part from her resume: Biden and his aides have proudly boasted that, if confirmed, she will be the first former federal defender to serve on the nation’s highest court. That’s the kind of experience that liberal legal activists have been for at all levels of the court, arguing that too many judges are former federal prosecutors and tend to harbor a pro-prosecution perspective.
Still, over most of his career, Biden has been more closely identified with tough-on-crime policies than with the criminal justice reform movement that remains ascendant in liberal circles.
Biden and his top aides seemed to take the back-to-the-future approach in public Friday as the president—and even the nominee herself—seemed eager to offer assurances that her work as a defense lawyer did not mean she was pro-criminal or anti-police.
“She comes from a family of law enforcement,” the president said, flanked by Jackson and Vice President Kamala Harris. He went on to quote a police union’s statement expressing confidence that Jackson would “treat issues related to law enforcement fairly and justly.”
Advocates for more professional and career diversity on the bench welcomed the mention of Jackson’s work as a public defender, but some found the appeals to law enforcement seemed like pandering to Republicans.
“This discussion around law enforcement felt like a political moment of wanting to set the stage for confirmation hearings,” said Judith Dianis of the Advancement Project, a civil rights group. “I would love to hear more about her experience as a public defender. I didn’t feel like that part was balanced.”
In his speech Friday, Biden praised Jackson’s “strong moral compass” and said she possesses “the courage to stand up for what she thinks is right,” but he said she doesn’t improvise on the bench.
“Her opinions are always carefully reasoned, tethered to precedent and demonstrate respect for how the law impacts everyday people,” the president added. “It doesn’t mean she puts her thumb on the scale of justice one way or the other but she understands the broader impact of her decisions.”
Biden called Jackson “a proven consensus builder,” but the public evidence for that is limited. She’s been on the D.C. Circuit, which generally sits in three-judge panels to consider cases, for less than nine months. Prior to that, she sat in the same courthouse, ruling on cases solo as a district court judge.
The president’s reference to Jackson’s ability to work across the ideological divide appeared to allude to her service on the U.S. Sentencing Commission, which sets guidelines federal courts use to try to encourage more uniform sentences in criminal cases. “Judge Jackson was known for working with Democrats and Republicans to find common ground on critical issues,” Biden said.
Legal experts said Jackson’s work on the relatively obscure commission isn’t much of an indicator of whether she would be able to bridge ideological divides on the nation’s highest court—or even whether she would try to.
“I think one of the biggest unknowns with Judge Jackson is: What’s her ability to build coalition on a nine-member court?” said South Texas College of Law Professor Josh Blackman.
As a former law clerk to the justice she has been nominated to replace, Justice Stephen Breyer, Jackson could be an heir to his approach of trying to rein in the court’s conservative bent by narrowing cases and seeking compromise decisions where possible. But Breyer had his most success doing that when the court was split, 5-4, between Republican appointees and Democratic ones. Now that it’s a 6-3 court under firm control of conservatives, the opportunities for bridge-building and even the wisdom of doing so are less evident.
Some don’t see in Jackson the stridency often expressed by Justice Sonia Sotomayor, who has emerged as the court’s liberal stalwart in the wake of the death of Justice Ruth Bader Ginsburg.
“She’s probably closer to Breyer than she is to Sotomayor,” Blackman said of Jackson. He also noted the interpersonal dynamics of the nation’s highest court are unique and not entirely predictable.
“Judge Jackson and Justice Jackson may not be the same person,” Blackman noted.
If Jackson is confirmed, one of the earliest tests of how she changes the court will come this fall, as the justices take up longstanding challenge to affirmative action in college admissions. The marquee case is a suit filed against Harvard in 2014, arguing that the school’s policies to try to boost admission of Black and Hispanic students amount to illegal discrimination against Asian-Americans.
Many of Jackson’s supporters have said they relish the opportunity for her, as a Black woman, to defend affirmative action programs when the issue is argued at the high court later this year. However, it’s not at all clear that Jackson will take part in arguments on the Harvard case, since she has served on a prominent governing panel there—Harvard’s Board of Overseers—since 2016.
Jackson likely will participate in a companion case the high court has also agreed to decide involving a challenge to policies at the public University of North Carolina.
While it’s unclear exactly how argument in the cases will proceed and how Jackson will approach the recusal issue, there’s little chance that her view will be decisive on the broader question. Affirmative-action programs in higher education have hanging by a thread at the high court for decades and they seem doomed in light of the six-justice majority of Republican appointees on the court following President Donald Trump’s three appointments.
Still, if Jackson does take part in those cases, she is positioned to play a unique role similar to the one Justice Thurgood Marshall played in the court’s private deliberations when he became its first Black member.
“She brings a history and perspective that is completely different from every other person that is going to be sitting in the [conference] room when the justices leave the courtroom,” Innocence Project Executive Director Christina Swarns said during the Twitter Spaces session. “That is, whether directly or indirectly, influential to the way the court will perceive and address these issues.”
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