Kenneth W. Mack is a professor of law and history at Harvard University and the author of “Representing the Race: The Creation of the Civil Rights Lawyer.” Andre M. Davis is a former judge on the U. S. Court of Appeals for the 4th Circuit.
As the historian Tomiko Brown-Nagin recounts in her recent biography of Motley, the firm’s attorney asked Motley to recuse herself because of bias — supposedly proved by Motley’s ruling certifying the case as a class action and undergirded by the notion that, as a Black woman and a former civil rights lawyer, she likely sympathized with those who suffered race or sex discrimination. Motley refused, and the case was settled.
In Motley’s case — as with other early Black federal judges who faced similar recusal motions — the presumption of bias turned out to be false. Of course she brought her experiences as a Black woman and a civil rights lawyer with her to the bench. But those experiences didn’t dictate which way she would rule. In fact, Motley’s record shows she was more likely to rule against, rather than for, those with discrimination claims.
Motley’s experience should make us cautious about assuming what the first Black female Supreme Court nominee — whomever that turns out to be — would do as a justice. We know from experience that Black judges — like White judges — fit into no predetermined model. After all, Justice Clarence Thomas replaced Thurgood Marshall on the Supreme Court.
Now, in a modern twist on the story of Motley and the discrimination lawsuit, a Black former judge has criticized one potential nominee, Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit for supposedly betraying a class of Black Lockheed Martin workers — by disapproving a proposed settlement when she was a district court judge.
In a letter to Biden, former district judge U.W. Clemon of Alabama asserted that Jackson should not be selected because she has not done enough “for the cause of justice and equality.” Clemon said that her decision to disapprove of the settlement is “a bell sounding the alarm that if Judge Jackson is appointed to the Supreme Court, simple justice and equality in the workplace will be sacrificed.” Clemon, in the letter, challenged several of her procedural decisions in the case but took most direct aim at her rejection of the settlement.
The Lockheed Martin case was a class-action suit in which the plaintiffs claimed to represent more than 5,500 current and former Black Lockheed employees. Because it was a class action, Jackson had a duty to protect the interests of the Black workers who were not in court but who would still be bound by the terms of the settlement. Clemon is listed as counsel to the firm that brought the case.
Jackson found in 2017 that the proposed class did not satisfy what is called the “commonality” requirement, which is designed to ensure that there is enough overlap between all the class members’ claims for it to make sense to resolve them all together. In doing so, she was applying a 2011 — and controversial — Supreme Court decision about employment discrimination class actions. The problem with the settlement, Jackson concluded, was that the proposed class of Lockheed employees “encompasse[d] individuals with widely varying experiences of discrimination.”
Jackson also ruled that the proposed settlement was not fair, reasonable and adequate because many Black employees would be abandoning potential discrimination claims without knowing what they were giving up and what monetary compensation or other relief they were likely to get in return. Every one of Lockheed’s Black employees would have had to give up all rights to sue the company for any kind of past discrimination to obtain a settlement in this one particular case, which challenged one particular employment practice of the company. Jackson believed that trade-off was unfair.
Does this indicate that Jackson is biased against, or for, Black plaintiffs or claims of workplace discrimination? At worst, Jackson seems to have been protecting one group of Black Lockheed employees from having their interests sacrificed for those of another group of Black employees. The history of African American federal judges, and of worries that they might be biased in discrimination cases, should lead one to be humble about drawing such broad conclusions, based on limited proof, about what a Black female justice is likely to do on the court.
A Black female justice will be an immensely powerful symbol of the past and future of this county, as Motley and her generation of judges knew all too well. We should expect great things of those who carry such symbolic weight on their shoulders. But we should expect, as well, the same things of them that we expect of any other judge — absent clear evidence to the contrary.
An earlier version of this column gave the wrong year for a Supreme Court decision, "Wal-Mart Stores, Inc. v. Dukes." The decision was made in 2011. This version has been corrected.