The paradox of Ketanji Brown Jackson

The Supreme Court is more diverse than it has ever been, and more hostile to political equality than any Court since the 1950s.

Supreme Court nominee Judge Ketanji Brown Jackson listens during her confirmation hearing before the Senate Judiciary Committee in Washington, DC, on March 21. Jacquelyn Martin/AP

By Ian Millhiser  Apr 7, 2022

Well, it’s official. The Senate confirmed Judge Ketanji Brown Jackson to the Supreme Court on Thursday by a 53-47 vote.

When soon-to-be Justice Jackson takes her seat this summer (retiring Justice Stephen Breyer plans to stay on until “the Court rises for the summer recess this year”), the Supreme Court will be more diverse than it has ever been. Not only will a Black woman serve as a justice for the first time in American history, but the Court will, for the first time, have four women. It will also have three people of color for the first time in its history.

It’s a historic moment. As Sen. Cory Booker (D-NJ) said at the beginning of Jackson’s confirmation hearing, her confirmation shatters a glass ceiling: “It’s a sign that we as a country are continuing to rise to our collective, cherished, [and] highest ideals.”

But Jackson will join a Court that has, at best, a tenuous relationship with those ideals.

The current Court, with its Republican supermajority, is more hostile toward voting rights — and specifically to the proposition that states may not write election laws that discriminate on the basis of race — than any Court since the Voting Rights Act became law in 1965. Indeed, the current Court may be more hostile to efforts to achieve racial equality than any Court since Brown v. Board of Education (1954).

Jackson’s confirmation means that she will have a seat at the literal table where the justices meet to cast their initial votes in argued cases. But her voice is likely to do little to sway her six Republican colleagues in the most closely watched and most important cases.

The room where it happens — and where the future Justice Jackson’s arguments are likely to be disregarded by her Republican colleagues.

 Courtesy of Supreme Court of the United States

As Irin Carmon wrote during the week of Jackson’s nasty, brutish, and far-too-long confirmation hearing, “if there’s any problem with Jackson’s likely confirmation to the Court, it’s that she may give voters more confidence in an institution that currently doesn’t deserve it.”

Jackson’s mere presence on the Court is a tribute to more than 400 years of struggle to ensure that all Americans will enjoy the blessings of political equality, regardless of race or gender. But she joins it at the very moment that the Court is taking the wrong side in this struggle.

The Supreme Court’s recent behavior is deeply alarming

The Court’s recent decisions are profoundly troubling, particularly when it comes to voting rights.

The cornerstone of political equality in the United States is the Voting Rights Act, which ensures that no one is denied the right to vote because of their race. For nearly 350 years, from when the first enslaved Africans arrived on American shores, until President Lyndon Johnson signed the Voting Rights Act into law, much of what is now the United States was an apartheid state or worse — denying political equality to Black people even after the chains of slavery were broken.

The Voting Rights Act may be the most swiftly effective civil rights law in American history. Just two years after it became law, Black voter registration in the Jim Crow fortress of Mississippi had grown from 6.7 percent to nearly 60 percent.

But the Court’s Republican majority, in Justice Elena Kagan’s words, “has treated no statute worse” than the Voting Rights Act. Among other things, the Court dismantled the law’s “preclearance” regime, which required federal officials to screen new voting laws in states with a history of racist voting practices, in Shelby County v. Holder (2013). And it’s made it nearly impossible for plaintiffs alleging intentional discrimination by state lawmakers to prevail in court.

Nor is the Court likely to limit its attack on the franchise to the Voting Rights Act. At least four Republican members of the Court support a legal theory, known as the “independent state legislature doctrine,” that the Supreme Court has repeatedly rejected over the course of more than a century. In its strongest form, this doctrine would allow state lawmakers to ignore their state governor’s veto power, their state constitution, and their state’s courts when writing laws governing federal elections — potentially allowing gerrymandered legislatures in states like Wisconsin to write laws that would prevent Democrats from competing in presidential elections.

Many Republicans, both on and off the federal bench, claim that such avulsive legal changes are mandated by “originalism” or “textualism,” the belief that laws should be interpreted exclusively based on how they were originally understood when they were enacted. Indeed, some Republican senators claim they will oppose Jackson because she did not explicitly endorse originalism during her confirmation hearing.

But the Court’s Republican majority routinely ignores the text of federal laws and the Constitution, especially in voting rights cases. The Shelby County decision, for example, was rooted in what Chief Justice John Roberts called the “‘fundamental principle of equal sovereignty’ among the States.” But this principle is mentioned nowhere in the Constitution.

Similarly, in Brnovich v. DNC (2021), the Court’s Republican majority invented a slew of new limits on the Voting Rights Act, such as a presumption that voting restrictions that were commonplace in 1982 are valid, despite the fact that these limits aren’t mentioned anywhere in the law’s text.

Indeed, many of the justices appear unwilling to follow the very same rules that they themselves have called upon the Court to follow. In early February, for example, the Supreme Court reinstated Alabama’s congressional maps in Merrill v. Milligan, despite a lower court’s determination that those maps were an impermissible racial gerrymander.

Though the full Court did not explain its decision in Merrill, Justice Brett Kavanaugh wrote a brief opinion, joined by Justice Samuel Alito, which suggested that the lower court erred because “federal courts ordinarily should not enjoin a state’s election laws in the period close to an election.” Kavanaugh wrote this opinion nearly nine months before the next general election, and three months before Alabama’s next primary.

Nearly two months later, however, the Court tossed out Wisconsin’s legislative maps for state elections, but neither Alito nor Kavanaugh provided any explanation of why it was suddenly acceptable to enjoin a state election law “in the period close to an election.”

Because the Court did not offer a full explanation of its actions, it’s hard to know why the Court decided to reach such inconsistent results. But one unifying thread tying together the Supreme Court’s decisions in both cases is that they both benefit white voters at the expense of Black voters. Another is that both decisions benefited Republicans at the expense of Democrats.

So the Court’s voting rights jurisprudence, to once again quote Kagan, “mostly inhabits a law-free zone.” The Court routinely ignores the text of the Constitution and of federal laws. It rushes out decisions that it barely explains — if it explains them at all. And it applies its own rules selectively in ways that seem designed to benefit the political party that controls the Court.

This is not a panel of justices who are likely to care very much what their newest colleague has to say about whether they are properly applying the law.

So what can Jackson do about this mess?

Barring extraordinary events, Jackson is likely to spend her early years on the Supreme Court — and perhaps much of her career as a justice — writing dissents. The Court’s Republican members are unlikely to abandon their ideology simply because there’s a new voice in the justices’ conference room explaining to them why they are wrong.

But, assuming that the United States continues to hold competitive elections where either major party could prevail, dissents can still be a very powerful tool — not because they persuade the current crop of justices, but because they persuade future justices.

Supporters of the confirmation of Judge Ketanji Brown Jackson rally outside of the Supreme Court on March 21.

 Jose Luis Magana/AP

“I’ve given up on the current generation,” the late Justice Antonin Scalia once told a room of law students about why he wrote so many dissenting opinions marked by caustic wit and highbrow insult humor. “But the kids in law school, I think there’s still a chance,“ he added. “That’s who I write my dissents for.” Scalia believed that, by writing unforgettable dissents that would become required reading in law school classes, he could convert the next generation of lawyers and judges into conservative originalists.

Similarly, Justice Clarence Thomas, who spent many decades writing far-right dissents that were joined by no other justice, inspired a large cohort of Federalist Society members, many of whom now sit on the federal bench. Thomas’s authoritarian vision — one that is hostile to voting rights, to press freedom, and to left-leaning legislation generally — won few converts among the justices Thomas has served with. But Thomas’s vision is increasingly dominant, and may even be the dominant approach among conservative legal elites under the age of 50.

When Judge Jackson becomes Justice Jackson, she will join two other liberal colleagues who’ve taken markedly different approaches from each other in their own dissents.

Justice Sonia Sotomayor is, in many ways, the mirror image of Thomas — often using her dissents to articulate a bold liberal vision that has no shot of prevailing on this Supreme Court. Her dissent in Utah v. Strieff (2016), for example, cited W. E. B. Du Bois, James Baldwin, and Ta-Nehisi Coates to argue against a legal regime where “people of color are disproportionate victims” of suspicionless stops by police.

Justice Kagan, by contrast, tends to focus more closely on the specific fight before her. When Chief Justice Roberts — a conservative who is somewhat more moderate than his other Republican colleagues — was still the median vote on the Supreme Court, Kagan spoke openly of her hopes of convincing Roberts to decide big cases as narrowly as possible.

Now that the other five Republicans no longer need Roberts’s vote to prevail, Kagan often tries to shame the majority by pointing out that their decisions are inconsistent with their own stated values. Hence Kagan’s dissent in the Brnovich case, which explained why the majority’s approach is an abomination against textualism.

It remains to be seen how Jackson will approach her dissents, but her opinions as a lower court judge suggest one approach she could take. Jackson has a reputation for writing very long opinions, sometimes more than 100 pages long, at least in the most contentious cases she heard as a lower court judge.

As a liberal judge hoping not to be reversed by a conservative Supreme Court, this approach made sense. By trying to anticipate any argument that could be raised against her decisions, and by comprehensively laying out her case against that argument, Jackson did what she could to insulate her decisions from reversal. She couldn’t prevent her higher-ranking colleagues from behaving like ideologues, but she could make it clear why such an approach is not consistent with the law.

Jackson could take a similar approach as a justice, writing long, comprehensive dissents that painstakingly take down the majority’s arguments. If she can churn these dissents out quickly, that could be an especially powerful approach in the Court’s shadow docket cases, where a lengthy dissent might shame a majority that barely takes the time to explain its decisions.

Realistically, Jackson — and anyone who supports the inclusive society that her confirmation symbolizes — faces a very difficult road ahead. In the worst-case scenario, the Court may lock in Republican rule for the foreseeable future. Even in a more optimistic scenario, left-leaning national candidates will face judicial headwinds in every election, and they will struggle to implement policies that the Court’s majority will accept.

But while Jackson cannot fix the current Supreme Court, she may be able to teach younger generations why a similar majority must never be allowed to gain control of the Court again.

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