Justice Ketanji Brown Jackson made history when she took her seat on the U.S. Supreme Court at the term’s opening in October, becoming the first Black woman on the bench in its 233-year history. Just a couple of months in, the Biden appointee has made waves on the nation’s high court, quickly building a reputation for incisive questions and unapologetic commentary.
Already, her inaugural term has been loaded with high-profile cases. In the coming months, the court could determine the strength of the Voting Rights Act in protecting Black voting power, rule whether religious freedom allows creative business owners to discriminate against same-sex couples, and decide the future of affirmative action in higher education. Belying her freshman status, Jackson has been exceptionally vocal during oral arguments, not hesitating to challenge the court’s conservative supermajority, made up of appointees of former presidents Donald Trump and George W. Bush.
In her first weeks on the high court, Jackson wrote dissenting opinions in support of two Black men on death row. She provided a history lesson on the “race-conscious” creation of the 14th Amendment during arguments over gerrymandering in Alabama. And she directly challenged an attorney’s arguments against considering racial diversity in college admissions.
“All of these cases that are talking about rights, access, representation, ability for care — they’re all directly disproportionately affecting African American people,” said Ada Goodly Lampkin, director of the Louis A. Berry Institute for Civil Rights and Justice at Southern University Law Center.
“Without that voice, who else would say those things?” Lampkin said of Jackson’s comments on race. “I know that Justice [Sonia] Sotomayor and Justice [Elena] Kagan have alluded to that in past cases, but to say that we now have a person that is very vocal and unafraid to talk about race and the circumstances, this is one where we need her voice the most.”
Jackson made her presence known, speaking at least 6,000 more words than any other judge during the court’s first eight oral arguments of the term. The former federal public defender and appellate court judge spoke 11,003 total words, said Adam Feldman, who runs the Empirical SCOTUS blog, in an interview with The New York Times.
While it’s not unusual for a freshman justice to comment during their first weeks, Jackson spoke more words during the court’s first oral arguments on Oct. 3 than any of the other current justices during their first arguments.
“It is unusual for the junior justice to be as outspoken as she is, but she’s also an unusual junior justice as the first Black woman to fill the role,” said Rakim Brooks, president of Alliance for Justice, a national coalition of progressive legal organizations. “So I think it should be applauded, particularly because there have been a lot of good studies about the extent to which the male justices interrupt the female justices, and so forth. So let’s just say that she’s making up for lost time for women who served on that court.”
Here’s a look at some of Jackson’s most notable moments on the bench so far:
President Joe Biden nominated Jackson to the court to replace Justice Stephen Breyer, who retired from the lifetime position in June. Breyer often joined in dissenting opinions with other liberal justices Sotomayor and Kagan for topics such as emergency applications for capital punishment cases — a role Jackson seems to be taking over.
Jackson wrote her first opinion on Nov. 7 on stopping the death penalty proceedings for Davel Chinn in Ohio after a majority of the justices declined to hear the case. Jackson’s dissent — joined by Sotomayor, the only other woman of color on the court — argued that Chinn hadn’t received a fair trial.
Chinn was convicted and sentenced to death for the 1989 murder and robbery of a 21-year-old man. The prosecution’s key witness to the crime was a teenager who was born with a birth defect that significantly reduced his IQ — information that was not revealed until after the Chinn’s conviction.
“There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately,” Jackson wrote.
Jackson “understands how many critical failures that we have had with the death penalty and with prosecutorial misconduct, and in her dissent she talks about that very clearly, that hiding evidence, exculpatory evidence, is certainly grounds when a person’s life is at stake,” Lampkin said.
There are about 2,400 people on federal and state death row, and 41% of them are Black, according to the Death Penalty Information Center. Since 1989, 73 Black men and a Black woman sentenced to death were later found to be wrongfully convicted — representing more than half of all exonerations, according to the National Registry of Exonerations database.
The Supreme Court’s decision allows Chinn’s death sentence to stand, though an execution death date has not been scheduled, according to Ohio’s Department of Rehabilitation and Correction website.
“She hasn’t yet made any clear declarations of where she stands on the death penalty, but I think that from this dissent, we can see where she is going — that she is going to point to the critical failures in the administration of criminal justice that have led to us putting to death so many people that could have been proven innocent or that could have had evidence that would have helped their case,” Lampkin said.
Last month, Jackson issued another dissent after the court decided not to stay the execution of Kevin Johnson, a Missouri Black man who killed a police officer in 2005. Johnson’s attorneys argued that the original trial prosecutor had a bias against Black people accused of crimes and brought that bias into the courtroom for his case.
Even though Johnson was executed on Nov. 29, Jackson issued the moot record the next day to say the execution violated Johnson’s constitutional right to due process, according to the SCOTUSblog. Sotomayor joined this dissent as well.
Redistricting map laws
Civil rights groups have pushed a voting rights lawsuit against Alabama, accusing the state of racial gerrymandering. A proposed congressional district map written by the Republican-controlled legislature dilutes the voting power of Black residents, they say, by grouping them into one majority-Black district instead of two, in violation of the Voting Rights Act.
In the case, Merrill v. Milligan, the state argues that creating a map that consciously grants Black residents more power would violate the 14th Amendment’s “race-neutral” equal protection clause. Jackson pushed back, giving a 537-word history lesson on the 14th Amendment to Alabama’s solicitor general during oral arguments on Oct. 4.
She argued that, based on historical documents, “the entire point of the amendment was to secure rights of the freed former slaves,” undermining the “race-neutral” argument.
“The record shows that the reason why the 14th Amendment was enacted was to give a constitutional foundation for that kind of effort, for the Civil Rights Act of 1866,” Jackson said. “It was drafted to give a foundational — a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.”
Jackson’s explanation of the 14th Amendment is an example of issues where “not only our political leadership, but our judicial leadership” lack an understanding on “how those issues affect Black people.”
The leader of Students for Fair Admissions brought lawsuits against Harvard University and the University of North Carolina, claiming that their admissions processes have committed civil rights violations for allegedly discriminating against Asian students. Both cases made their way to the Supreme Court on Oct. 31, with great concern that the court’s 6-3 conservative majority may end affirmative action — even though previous Supreme Courts have upheld its constitutionality.
“I think our Republican leadership is really interested in breaking down a lot of the protections that were afforded so that African Americans could have equal footing. Without her voice, who do we have? That becomes the question,” Lampkin said.
Jackson — a Harvard graduate whose term on the university’s board of overseers expired earlier this year — said during her confirmation hearing in March that she would recuse herself from oral arguments in this case. Some have questioned the move, since justices Kagan and Kavanaugh also have previous ties to Harvard University and did not recuse themselves.
But in the North Carolina case, she challenged an attorney for Students for Fair Admissions on the notion that colleges were considering race alone in assessing candidates.
“As I read the record and understand their process, it’s never standing alone, that it’s in the context of all of the other factors. There are 40 factors about all sorts of things that the admissions office is looking at,” she said. “And you haven’t demonstrated or shown one situation in which all they look at is race and take from that stereotypes and other things. They’re looking at the full person with all of these characteristics.”
Lampkin noted that Justices Sotomayor and Kagan have made cases for the benefits of diversity in education in the past, but Jackson put an especially sharp point on the issue.
“I think Justice Jackson is upholding something that is very, very important and that is the benefit of diversity and education and also the understanding of equity in education and what this would do to unravel our colleges and universities,” Lampkin said.
Same-sex marriage and creativity
In the case of Lorie Smith, the Colorado creative web designer declined services to a same-sex couple, saying she should not have to compromise her religious beliefs and artistic creativity to run a business. Smith’s refusal of service to that same-sex couple violates Colorado law, which she’s challenging through the civil legal system. Her goal is that the majority Republican-appointed panel of justices will set a precedent and side with her.
During oral arguments on Dec. 5, Jackson compared Smith’s case to a person hired to play Santa Claus at a mall who refused to take Christmas photographs with Black children. The hypothetical prompted a counter-example from Justice Samuel Alito, who asked if a Black mall Santa would have to take a picture with a child in a Ku Klux Klan outfit.
Lampkin’s concern is that if the Republican-appointed bench sides with Smith, it will open the floodgates for anyone who claims to be creative to deny services for any reason.
“There could be a severe limitation between private and public accessibility to services and resources that would color our country as intolerant,” Lampkin said.
Brooks says that this case symbolizes how “we’re still trying to fight for equality in society, and the way that the law is used to help us fight for equality, we can’t do that if we’re on the defense. And all of these cases are meant to put us on the defensive and to gradually weaken us.”
“We are not on the offense, the issues that we care about are not progressing in the courts, the legal theories that we believe should govern have no sunlight, because they’re on the offense by virtue of their 6-3 majority and the way that the legal community has said or treated that to guide its own strategies,” Brooks said.
This story was originally published Dec. 12, 2022, by Capital B News.