Supreme Court Justice Ketanji Brown Jackson made a liberal imprint on the nation’s highest court during her historic first term, which concluded at the end of June.
Justice Jackson, who was nominated by President Joe Biden and confirmed by the Senate for the Supreme Court in April 2022, during her first term often dissented alongside the court’s other two liberal justices, Sonia Sotomayor and Elena Kagan.
The court issued 58 opinions in cases argued in the term that began in October 2022. Justice Jackson wrote five majority opinions in those cases.
One of them was Santos-Zacaria v. Garland. The court unanimously held in favor of a transgender illegal immigrant from Guatemala seeking asylum, claiming that he would face persecution if forced to return to his home country. The decision gave the person concerned another opportunity to fight deportation.
Another case was Health and Hospital Corp. of Marion County v. Talevski, in which the court ruled 7–2 that Medicaid enrollees can sue when state officials violate their rights. Four conservative justices joined Justice Jackson’s majority opinion.
Justice Jackson also wrote the court’s unanimous opinion in Delaware v. Pennsylvania, ruling against Delaware, President Biden’s home state. The court ruled that Delaware couldn’t seize unclaimed funds left over from abandoned money orders purchased in other states.
‘A Solid Expected Vote’
Justice Jackson was “a solid expected vote on the left of the court in politically salient cases” who will not be “influential in terms of getting some of her colleagues on the right to come over,” Manhattan Institute constitutional scholar Ilya Shapiro told The Epoch Times.“But she’s firmly slotted in on that side of the court,” he said.
Curt Levey, an attorney who is president of the Committee for Justice, a conservative legal advocacy nonprofit, said Justice Jackson voted “predictably on the big ticket cases.”
“She was a little bit less to the left than [Justice Sonia] Sotomayor,” Mr. Levey told The Epoch Times.
“I think that Ketanji Brown Jackson is a solid progressive, but not a crazy progressive.
“On the big hot-button cases, the Democratic appointees on the court have long voted together—even ones that we would think of as moderate. [Justice Elena] Kagan and [former Justice Stephen] Breyer—on the big issues like this, they vote together. So, to have expected that Jackson would in any way differ from that pattern would have been completely unrealistic.”
Justice Jackson joined her fellow liberal justices and most in the conservative bloc—which includes Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—on cases involving redistricting (Moore v. Harper and Allen v. Milligan), Native American adoptions (Haaland v. Brackeen), and immigration (United States v. Texas).
Justice Jackson leaned to the left in her dissent in SFFA v. University of North Carolina, a companion case to SFFA v. Harvard. In it, she defended the racially discriminatory affirmative action system, calling it “holistic.”
“Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens,” she wrote.
“They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal.”
Additionally, Justice Jackson pointed to U.S. history, echoing the left’s talking points about systemic discrimination against black people in the United States.
The 14th Amendment
Mr. Levey addressed Justice Jackson’s comments about the 14th Amendment.“There’s certainly no question that when the 14th Amendment was enacted, we had just come out of slavery and the Civil War, and that that is what they were focusing on. But if you look at the actual text of the 14th Amendment, it does not limit itself to any particular race.”
“Even the most liberal courts—the Warren and Burger courts—never said that the 14th Amendment doesn’t protect white or Asian people,” he said.
Earl Warren served as chief justice from 1953 to 1969; Warren Burger served as chief justice from 1969 to 1986.
During oral arguments in SFFA v. University of North Carolina, Justice Jackson suggested that colleges and universities need to use race in the admissions process.
“You’re saying that we can challenge the use of race as a factor without explaining how it’s factoring in and how that harms our members,” she said.
“So why is it that race is doing anything different to your members’ ability to compete in this environment?” the justice said. “They can still get extra points. You know, the points are not being tallied. There’s no goal. There’s no target. But, in any event, they can get points for diversity even in this environment.”
She challenged the plaintiff’s claim that UNC discriminates against Asian and white applicants and claimed that embracing racial diversity is something to be lauded.
Justice Jackson advocated for the left’s pro-racial preference position in the case. She said during oral arguments: “Just because somebody checks a box—what if they check the box and the university sees that but doesn’t look at it, doesn’t take it into account in any way in the application? Do we have a constitutional violation just because the student voluntarily—voluntarily—said, I’m an African American, but that never comes into play?”
Justice Clarence Thomas, the second black justice to sit on the nation’s highest court, took on Justice Jackson, the third, in his opinion concurring with the majority “to offer an originalist defense of the colorblind Constitution.”
‘World View Falls Flat’
“Justice Jackson’s race-infused world view falls flat at each step,” Justice Thomas wrote.“Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives.”
Mr. Levey said the dissents of Justice Jackson and Justice Sotomayor in the case contained rhetoric that can “be summarized as saying this is a systemically racist country.”
“We can debate whether that’s true or not, but the Supreme Court has been very clear that while you can discriminate in order to remedy your own past discrimination ... you can’t discriminate to remedy societal discrimination, and so much of what Sotomayor and Jackson talked about in their dissents really goes to that issue of societal discrimination,” he said.
Although conservatives have been critical of both justices’ dissents, Justice Sotomayor’s dissent “was less respectful” and had “more of a defiant tone” than Justice Jackson’s, he said.
“Whereas, Jackson was more respectful. And that’s one of the reasons that I think Jackson is a little bit less far to the left than Sotomayor.”
In 303 Creative LLC v Elenis, in which the court ruled for the website designer, Justice Jackson was in the minority.
As in the affirmative action case, Justice Jackson’s comments during the oral argument suggested she was against the plaintiff. She tried to inject the issue of race into the case by raising a hypothetical about a photographer refusing to take “It’s a Wonderful Life”-themed photos of nonwhite people.
“I want to do video depictions of ‘It’s a Wonderful Life,' and knowing that movie very well, I want to be authentic, so only white children and families can be customers for that particular product,” Justice Jackson said.
Roger Severino of The Heritage Foundation wrote on X, then known as Twitter, that the justice made an “outlandish” analogy in the form of a “white supremacy allegory.”
‘Premature to Judge After 1 Term’
Josh Blackman, a constitutional law professor, told The Epoch Times that Justice Jackson made herself known on the highest court in the land.“I think Justice Jackson has come out very forcefully in her first term to articulate a progressive view of the law. She has written many dissents, including dissents where the court denied review in a case,” he said.
“She has also been very active during oral argument,” Mr. Blackman said. “I don’t think she has had much of an impact on the court’s deliberations, but has had an oversized impact on media coverage.”
Of course, that doesn’t mean that Justice Jackson’s approach won’t evolve on the bench.
Howard Slugh, an attorney who has litigated constitutional issues, told The Epoch Times that the first year of any justice’s tenure is a transition period.
“It is entirely reasonable that it takes a term to get used to being on the Supreme Court. Justices may be more tentative their first term while acclimating to the Court and how to interact with their new colleagues,” he said.
“Additionally, 50ish cases is a pretty small sample size. It’s just premature to judge someone after one term in a difficult and new situation,” Mr. Slugh said.
“It is fair to critique a justice’s work in that term with the understanding that it is a first term, but it would be foolish to think that you can really get a feel for what a justice’s jurisprudence will look like over the next few decades after their first term.”
