With Ketanji Brown Jackson’s confirmation comes a new version of the Supreme Court.
Moreover, the retirement of Justice Stephen G. Breyer this summer and the ascension of Jackson will culminate an almost complete turnover of the Supreme Court in less than a generation.
Jackson’s presence will go a long way toward President Biden’s stated goal of a court that looks more like America. But it won’t impact for now one that is ideologically stacked for conservatives, caught in a political crossfire as intense as any before and facing a host of issues that will stoke rather than dissipate partisan dissatisfaction.
The tense confirmation battle over the first Black woman nominated to the Supreme Court played out along expected partisan lines, even though replacing a liberal justice with one of his like-minded former clerks held no chance of shifting the court’s 6-to-3 conservative edge.
An 83-year-old will be replaced by a 51-year-old, but it is difficult to think of an issue before the court that will be changed because of the swap of Jackson for Breyer.
But the no-holds-barred battle over her confirmation underscored the new reality that for now, filling a Supreme Court vacancy has become dependent on a party controlling both the White House and the Senate. That could mean even more strategic decisions about when a justice retires, said Barbara Perry, a presidential and Supreme Court historian at the University of Virginia’s Miller Center.
“Remember, they love their jobs,” she said, and generally are reluctant to give up their lifetime appointments. The conditions were right for Breyer, who saw a Democratic president and Senate, and warning signs both in the recent past and the immediate future, when Democratic control of the Senate is threatened.
The past? “Justice [Ruth Bader] Ginsburg missed the window,” Perry said, and her death weeks before the 2020 election allowed President Donald Trump to nominate Amy Coney Barrett, the last of three nominees he put on the court.
After Breyer was confirmed in 1994, 11 years passed before a new justice was added, and it is possible a similar scenario could play out now. Justice Clarence Thomas, 73, is the oldest and only justice remaining from those times, and with Jackson’s arrival, the court will be composed entirely of baby boomers and Gen Xers.
“Remember, we used to talk about the graying of the court?” Perry said. “But in ‘court-years,’ these justices are spring chickens.”
It is unclear how that will affect the court’s willingness to junk precedent, or change in the job. Younger justices were once thought to be more likely to “evolve” on the court, and studies showed most often in a liberal direction.
But the selecting president is still the most accurate predictor of how a justice will vote. President Barack Obama would find little to fault about the jurisprudence of his choices for the court, Justices Sonia Sotomayor and Elena Kagan.
And Trump was right about the conservative credentials of Neil M. Gorsuch, Brett M. Kavanaugh and Barrett, who are often to the right of conservative Chief Justice John G. Roberts Jr. (Trump’s disappointment with the trio comes from their decisions turning aside his extravagant assertions of executive privilege and claims about his reelection loss.)
Besides the historic nature of her confirmation, Jackson brings experiences either missing or in short supply on the current court: an expertise on sentencing guidelines, background as a public defender and criminal defense attorney, and years as a district judge.
That might mean she is a bit more sympathetic to criminal defendants than Breyer has been. But she is unlikely to quickly adopt his position that the death penalty is unworkable; it took him years to get to that point, and fellow liberals Sotomayor and Kagan still have not gone that far.
Jackson is joining an institution relatively popular, as these things go. A March survey by the Marquette Law School showed 54 percent of the public approved of the court’s job performance, a number that has bumped around from 66 percent in September 2020 to 49 percent a year later. But even its lowest ratings top those of Biden or Congress.
Somewhat surprisingly, while the congressional fight over the court is political, the approval is bipartisan. Last month, 64 percent of Republicans approved of the court, but so did 52 percent of Democrats and 51 percent of independents.
The court is supposed to rule on the law, not public opinion. And Charles Franklin, director of Marquette’s extensive polling on the court, said the array of issues before the court will make it difficult to keep bipartisan approval, which generally is based on the outcome of the case, not the court’s reasoning.
“On abortion, the Second Amendment, race in college admissions, gay rights versus religious liberty and others the public is more sharply split along partisan lines than they are currently on approval of the court,” Franklin said.
“A string of cases in a consistent direction is likely to cement partisan views of the court. A mix of decisions, or decisions that reach some limited scope, might mitigate partisan feelings. But an agenda of hot cases and a divided public will likely increase perceptions of the court in partisan terms.”
By the time Jackson joins the court, it will have ruled in cases advocating for a broad right to carry weapons outside the home that cannot be crimped by states and localities, and on whether Roe v. Wade’s guarantee of the right to abortion is still good law. She will take the bench next fall with those decisions likely dominating the midterm elections for Congress.
Jackson has said she will likely recuse herself from one of the court’s biggest cases next term, a challenge to the way Harvard takes account of race in making admission decisions, because she has served on a governing board at her alma mater. (There is a companion affirmative action case involving the University of North Carolina at Chapel Hill, but the court’s conservative majority would seem to render both programs endangered, regardless of Jackson’s participation.)
But after that will come the court’s continuing but still unsettled jurisprudence on whether those who provide wedding services can draw the line at same-sex couples. And there will be others. There is never a shortage of controversies.
If for now the short-term prospects of Jackson’s replacement of Breyer might mean nothing more than a different name on the dissent, Supreme Court justices are in it for the long term. Jackson could serve for decades on a court that will be constantly changing; perhaps she will produce law clerks like those of Thomas, who now populate the federal judiciary and will be a lasting impact of his tenure.
Like nominees before her, Jackson claimed to the Senate Judiciary Committee that she had an open mind and deep respect for Supreme Court precedent. Sotomayor did so on Second Amendment rights, Kagan on whether there was a right to marriage for gay couples, and Gorsuch, Kavanaugh and Barrett on abortion rights.
Their subsequent votes on those issues fell exactly where their supporters and opponents predicted they would. If the jury is out on Jackson, it won’t take long to get a verdict.