By Candice Norwood, The 19th
Throughout her career, Ketanji Brown Jackson has been one of just a few Black women.
When Jackson became a clerk for Supreme Court Justice Stephen Breyer in 1999, less than 2 percent of the high court’s clerks at the time were Black.
When she was appointed to be a U.S. district judge in 2013, Black women made up about 1 percent of all judges to ever sit on the federal bench.
Now, Jackson will be the first Black woman to hold a Supreme Court seat. The Senate on Thursday voted 53-47 to confirm Jackson’s historic nomination to the nation’s highest court. Though Jackson will not change the court’s conservative majority, she will change the court. Her presence is set to create the first all-women liberal wing of the court, whose dissenting opinions are expected to outline their vision for a more just country and possibly influence future Supreme Court rulings. Jackson’s position on the Supreme Court will also change the legal profession, giving Black women new representation at the highest levels.
Jackson’s confirmation comes 41 days after President Joe Biden announced her nomination. Vice President Kamala Harris, a historic first in her own right, presided over the final vote, though Democrats did not need her to break a tie. In the end, Senate Democrats were unified in their support for Jackson; Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah joined them. She will replace Breyer, her former boss, when he steps down from the court at the end of its current term in June or July.
In addition to Jackson’s title as the country’s first Black woman Supreme Court justice, she will also be the first justice in three decades with criminal defense experience. She was a federal public defender from 2005 to 2007, representing people who lacked the resources to hire an attorney. With eight years of experience in the U.S. district court, Jackson will also have more experience as a federal trial court judge than any other sitting justice. Both aspects of her background will be valuable to the Supreme Court, legal experts told The 19th.
Nine of the 62 cases, or 14 percent, heard by the Supreme Court in 2020 were criminal. Twenty percent of the court’s cases were criminal in 2019.
“The Supreme Court is absolutely a really important player in the criminal justice space,” said Alexis Karteron, an associate professor of law at Rutgers Law School. “They’re making decisions around constitutional law that affect the rights of people who are defendants in the criminal legal system all the time, as well as interpreting criminal laws.”
Three of the current nine justices are former prosecutors, but Jackson’s defense background provides a different perspective in considering whether the rights of defendants are being upheld. During her confirmation hearings for the Supreme Court and D.C. appellate court, Jackson explained to senators that her time in public defense shaped how she approaches her role as a judge. She was surprised by how many defendants did not understand why they were facing specific charges, Jackson told senators last year.
“I speak to them directly and not just to their lawyers,” Jackson said. “I use their names. I explain every stage of the proceeding because I want them to know what’s going on.” She also explains the harm they have caused to others.
Her work as a federal trial judge will also allow her to discuss the nuances of Supreme Court cases in a way that is easily digestible for the lower courts, Karteron said.
Jackson’s position on the Supreme Court will likely reverberate for many women and people of color. She has repeatedly cited Constance Baker Motley, the first Black woman to become a federal judge — with whom she shares a birthday — as a source of motivation in her own professional journey. As a justice and a historical first, she will be that inspirational figure for many, particularly Black women and girls faced with navigating spaces dominated by White men.
The legal field, like many industries, has long failed to adequately include people from historically marginalized communities. In 2020, Black people represented 5 percent of all active lawyers, the same percent as 10 years before, according to the American Bar Association. Black women lawyers said they believe Jackson’s representation will demonstrate the heights that Black women can reach.
“I think that she is a really great example for a lot of people who will be first, people who will sit in rooms where there aren’t many folks who look like them, people for whom being successful in their chosen field will be a regular and consistent uphill battle,” said Kimberly Mutcherson, co-dean and professor at Rutgers Law School in Camden, New Jersey.
This symbolic role is one taken up by other historic justices, including Sandra Day O’Connor, the country’s first woman on the high court, and Sonia Sotomayor, the first woman of color of the court.
“Sandra Day O’Connor deployed her symbolic role to inspire girls and women all over America to aspire to equal respect and ambition,” said Linda Hirshman, a lawyer and author of several books, including “Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.” “In a similar way, Jackson may use her position on the Supreme Court to inspire Black people and Black women” through speaking engagements and sharing details of her life story, Hirshman added.
Jackson during her Senate Judiciary hearing talked about her efforts to engage young people, telling Democratic Sen. Alex Padilla of California that she speaks with them regularly.
“I hope to inspire people to try to follow this path because I love this country, because I love the law, because I think it is important that we all invest in our future,” Jackson said. “Young people are the future, and so I want them to know that they can do and be anything.”
Jackson will join the court during a precarious time. Polling indicates that public confidence in the Supreme Court reached a new low last year, with 40 percent of Americans approving of how justices have carried out their jobs, according to Gallup. Many are calling for changes to how the court operates, saying the court, and the justice confirmation process, have become too politicized. That position has recently gotten new fuel with arguments that Justice Clarence Thomas should have recused himself from cases on the 2020 election and January 6 attack on the Capitol because his wife, Ginni Thomas, advocated for the election’s result to be overturned.
In joining the court, Jackson will not change its 6-3 conservative supermajority and she will likely be in the minority for many opinions. But for the first time, the liberal side of the court will be a multiracial group of women: Jackson, Sotomayor and Justice Elena Kagan.
Through their different professional and personal experiences, they will offer viewpoints and write dissents that may shape how the conservative justices consider a case. “It’s not uncommon to see a majority opinion reference arguments that are raised in dissent,” Karteron said.
The court’s highly anticipated decision in Dobbs v. Jackson Women’s Health Organization, a case that will determine the constitutionality of a 15-week abortion ban passed in Mississippi, will come before Jackson joins the court Still, the issue of abortion will likely continue to move through the federal courts after that decision as states’ laws restricting abortion access spark new lawsuits, reproductive rights experts said.
Questions asked by Republican senators during Jackson’s confirmation hearings also signal a desire for the court to go beyond abortion and challenge what’s known as “unenumerated rights” — rights that are not explicitly outlined in the constitution but have been upheld by Supreme Court decisions, Melissa Murray, the Frederick I. and Grace Stokes professor of law at New York University, told The 19th. Such unenumerated rights include the landmark 2015 decision recognizing the constitutional right of same-sex couples to marry, which Republicans repeatedly referenced during Jackson’s hearings.
It’s unclear exactly which of these subjects may come before the court in the future, but court watchers will likely keep a close eye on dissents written by the three liberal women justices.
Sotomayor has already shown herself to be a talented dissenter who crafts her arguments in a way that is more easily understandable to the general public, said Anna Law, an associate professor of political science and the Herb Kurz Chair in constitutional rights at CUNY Brooklyn College. These dissents can be used by legal advocates and policy advocates in current fights over legislation, but they also serve as a roadmap for future legislative change. If the court shifts left ideologically in the future, these dissents may become the basis for majority opinions, Law said.
A dissent by Justice Ruth Bader Ginsburg notably led to federal legislation. In 2007, the Supreme Court ruled 5-4 against Lilly Ledbetter’s lawsuit alleging pay discrimination. Ginsburg argued that “the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discriminations.” Ginsburg’s words and friendship prompted Ledbetter to continue her fight for equal pay, and the Lilly Ledbetter Fair Pay Act became the first piece of legislation signed into law by President Barack Obama in 2009.
However Jackson uses her voice as a member of the Supreme Court, it’s clear that she understands the weight of her history-making achievement.
“I am humbled and honored to have the opportunity to serve in this capacity and to be the first and only Black woman to serve on the United States Supreme Court,” Jackson said during her confirmation hearings. “I stand on the shoulders of generations past who never had anything close to this opportunity. … This is a moment that all Americans should be proud.”
Editor’s note: This article was originally published by The 19th.