Ketanji Brown Jackson, a Transformative Justice Whose Impact May Be Limited

WASHINGTON — Justice Ketanji Brown Jackson, the first black woman confirmed to the Supreme Court, will in a way transform it. Once she replaces Justice Stephen G. Breyer, one of the 108 white men who came before her, the court will be much more like the nation she serves.

There will be, for the first time, four women on the pitch. Also for the first time, there will be two black judges. And a Latin.

But that new cadre on the court’s big mahogany bench will mask a simple truth: The new judge will do nothing to alter the basic dynamic on a court dominated by six Republican appointees.

However collegiate she may be, whatever her reputation as a “consensus builder,” and whatever her voting record will be slightly to the right or left of Justice Breyer, the court’s lopsided conservative majority will remain in charge. Justice Jackson will most likely find herself, as Justice Breyer has, at odds in the court’s most important cases on highly charged social issues.

Indeed, in an institution that values ​​seniority, the three-member liberal wing of the court tends to lose power.

The ferocity of Justice Jackson’s confirmation fight was, then, totally at odds with what was at stake in the actual work of the court, at least in the short term.

Justice Breyer will remain on the court until the end of the current term, in late June or early July. He has lately been on the losing side in rulings refusing to block a Texas law that bans most abortions after six weeks and shuts down Biden administration programs meant to combat the coronavirus pandemic.

By the summer, Justice Breyer will likely write to or join dissenters from majority opinions that undermine or eliminate the abortion right established in Roe v. Wade, expanding Second Amendment protections for carrying guns in public and limiting the ability of the Environmental Protection Agency to address climate change.

There is no reason to think that Justice Jackson will have any more ability to stop the court’s march to the right in the high-profile cases the court will hear after the justices return from their summer break and she takes office.

Instead, he said at his confirmation hearing that he planned to recuse himself from one of the blockbusters of the next term, a challenge to Harvard’s race-conscious admissions program, given his service on one of the university’s governing boards. .

But it is not expected to be disqualified from a companion case, on the admissions program at the University of North Carolina, which raises somewhat broader questions and will now become the main draw.

There is no direct evidence from Judge Jackson’s court file as to how she is likely to approach the case. But both her supporters and her opponents are confident that she will vote to defend programs in which colleges and universities consider race as one factor among many in admissions decisions.

More conservative members of the court, on the other hand, seem ready to say that the Constitution and federal law prohibit such programs. That would represent a sharp break with more than four decades of precedent.

As recently as 2016, the Supreme Court ruled that the University of Texas at Austin could continue to consider race as a factor in ensuring a diverse student body.

In an interview shortly after the Texas case was decided, Judge Ruth Bader Ginsburg said, in error as it turned out, that the decision would be the final word on the matter. “I don’t expect we’ll see another case of affirmative action,” she said, “at least in education.”

Justice Ginsburg died in 2020 and was succeeded by the third of President Donald J. Trump’s three appointees, Judge Amy Coney Barrett, creating a conservative supermajority on a court that had been deeply divided for decades.

The Texas ruling essentially upheld Grutter v. Bollinger, a 2003 decision that supported holistic admissions programs. Writing for the majority, Justice Sandra Day O’Connor said she hoped “25 years from now” the “use of racial preferences will no longer be necessary.”

If the court annuls the admissions programs at Harvard and UNC in the spring or summer of 2023, as seems likely, Judge O’Connor’s deadline will expire by five years.

Justice Jackson will also be involved in the latest showdown between religious freedom claims and gay rights, this time in a case involving a web designer who opposes catering to same-sex weddings. The court considered a similar dispute in 2018 in a case about a Colorado baker, but Justice Anthony M. Kennedy’s limited and confused majority opinion did not resolve the basic issue.

Justice Kennedy retired later that year and was replaced by the more conservative Justice Brett M. Kavanaugh. The court, which has been exceptionally receptive to cases brought by religious groups and individuals, is likely to rule in favor of the web designer.

Justice Jackson also has no judicial history in this area, but it would be a surprise if she joined the court’s conservatives.

In the third major case already on the court docket for his next term, the justices will consider the role race can play in mapping voting. The court may have tipped back in February, when it temporarily reinstated an Alabama congressional map that a lower court said diluted the power of black voters, suggesting the court was about to become more skeptical of voters. challenges to maps based on race claims. discrimination.

The court will hear an appeal in the same case shortly after Judge Jackson arrives. But the court’s order in February indicated that there may already be five votes to continue with one of the flagship projects of the court led by Chief Justice John G. Roberts Jr., that of limiting the validity of the Human Rights Act. Elections of 1965.

In previous decisions, the Supreme Court effectively struck down Section 5 of the law, which required federal approval of changes to state and local election laws in parts of the country with a history of racial discrimination, and cut Section 2 of the law. , limiting the ability of minority groups to challenge voting restrictions.

The Alabama case also refers to Section 2, but in the context of redistricting. Court liberals were in disagreement when the court issued its interim order in February, and they are likely to be in the same position when the court rules on the merits of the case.

As a junior member of the court, Judge Jackson will have at least two different responsibilities. He will be part of a committee that oversees the courthouse cafeteria and will answer the door at the judges’ private conferences when court clerks are called in to turn in a forgotten item.

As for the actual work of the court, judges say it can take a long time to get comfortable.

“I was scared to death for the first three years,” Justice Breyer, who joined the court in 1994, said in a 2006 interview.

Estimates have not changed over time. “It took four or five years for an intellect as extraordinary as Brandeis said to feel that he understood the issues of court jurisprudence,” Justice Felix Frankfurter wrote of Justice Louis D. Brandeis, who sat on the court from 1916 to 1939. .

Justice Jackson is only 51 years old and will likely serve for decades, gaining experience and stature. The composition of the court will change during those years (four of the justices she will join are 67 or older) and her leadership may change as well. That could make Justice Jackson not only a trailblazing judge, but also influential and consistent.

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