WASHINGTON — Judge Ketanji Brown Jackson, the first black woman confirmed before the Supreme Court, will transform it in a way. Once she replaces Judge Stephen G. Breyer, one of the 108 white men who preceded her, the court will be much more like the nation she serves.
There will be four women on the field for the first time. There will also be two black judges for the first time. And a Latina.
But that new tableau on the court’s mahogany bench will obscure a simple truth: The new justice system won’t change the basic dynamics on a court dominated by six Republican appointees.
As collegiate as she is, whatever her reputation as a “consensus builder” and whether her vote will be slightly to the right or left of Judge Breyer, the court’s unilateral conservative majority remains in charge. Judge Jackson, like Judge Breyer, will most likely disagree in the court’s key lawsuits over highly charged social issues.
Indeed, in an institution that values seniority, the three-member liberal wing of the court is in danger of losing power.
Thus, the ferocity of the battle for Judge Jackson’s confirmation was completely at odds with what was at stake in the court’s actual work, at least in the short term.
Judge Breyer will remain on the court until the end of the current term, in late June or early July. He has been on the losing side of late in rulings refusing to block a Texas law banning most abortions after six weeks and halting Biden’s government programs designed to fight the coronavirus pandemic.
By the summer, Judge Breyer is likely to write dissenting opinions or join majority views that undermine or eliminate the right to abortion established in Roe v. Wade, extend Second Amendment protections for carrying guns in public, and limit the Environmental Protection Agency’s ability to address climate change.
There’s no reason to believe Judge Jackson will be able to stop the court’s move to the right in the marquee cases the court will hear after the judges return from their summer break and she sits on the bench.
Rather, she said during her confirmation hearing that she planned to pull out of one of the upcoming semester’s blockbusters, a challenge to Harvard’s race-conscious admissions program given her service on one of the university’s governing boards.
But she’s not expected to disqualify herself from an accompanying case study on the University of North Carolina admissions program, which raises some broader questions and will now become the main attraction.
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 opponents are convinced that she will vote for programs in which colleges and universities consider race as one of many factors in admissions decisions.
The more conservative members of the court, on the other hand, seem willing to say that the Constitution and a federal law prohibit such programs. That would be a sharp break from more than four decades of precedent.
In 2016, the Supreme Court ruled that the University of Texas at Austin could continue to view race as a factor in ensuring a diverse student population.
In an interview not long after the Texas case was decided, Judge Ruth Bader Ginsburg said, as it turns out, that the decision would be the last word on the subject. “I don’t expect to see another case of affirmative action,” she said, “at least in education.”
Judge Ginsburg passed away in 2020 and she was replaced by the third of President Donald J. Trump’s three appointees, Judge Amy Comey Barrett, creating a conservative supermajority in a court that had been closely divided for decades.
The Texas ruling essentially upheld Grutter v. Bollinger, a 2003 decision that endorsed holistic admissions programs. Writing for the majority, Judge Sandra Day O’Connor said she expected “in 25 years” the “use of racial preferences will no longer be necessary”.
If the court cancels admissions programs at Harvard and UNC in the spring or summer of 2023, as it seems likely, it will meet Justice O’Connor’s five-year deadline.
Judge Jackson will also join the latest clash between claims of religious freedom and gay rights, this time in a case involving a web designer who objects to the provision of same-sex marriage services. The court heard a similar dispute in 2018 in a Colorado bakery case, but Judge Anthony M. Kennedy’s muddled and narrow majority opinion did not resolve the fundamental issue.
Justice Kennedy retired later that year and he was replaced by the more conservative Justice Brett M. Kavanaugh. The court, which has been extremely receptive to cases brought by religious groups and individuals, is likely to rule in favor of the web designer.
Judge Jackson also doesn’t have a track record in this area, but it would be a surprise if she were to join the court’s conservatives.
In the third major case already on the court’s roll for next term, the judges will reflect on the role race can play in drafting voting cards. The court may have lent a hand in February when it temporarily reinstated an Alabama congressional map that a lower court had said reduced black voter power, suggesting the court was about to become more skeptical about disputing maps. based on claims of racial discrimination.
The court will hear an appeal in the same case shortly after Judge Jackson arrives. But the court order in February indicated there may already be five votes to support one of the court’s signature projects headed by Chief Justice John G. Roberts Jr. namely limiting the power of the Voting Rights Act of 1965.
In previous decisions, the Supreme Court effectively invalidated Section 5 of the law, which required federal approval of changes to state and local voting laws in parts of the country with histories of racial discrimination, and cut back on Section 2 of the law, limiting of minority groups’ ability to challenge voting restrictions.
The Alabama case also concerns Section 2, but in the context of reclassification. The court liberals disagreed when the court issued its preliminary ruling in February, and they will likely 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. She will serve on a committee that oversees the court’s cafeteria, and she will open the door at judges’ private conferences when clerks are called to deliver a forgotten item.
As for the real work of the court, judges say it can take some time for you to feel comfortable.
“The first three years I was terrified,” Judge Breyer, who joined the court in 1994, said in a 2006 interview.
Estimates have not changed over time. “Such an extraordinary intellect as Brandeis said it took him four or five years to feel that he understood the jurisprudential problems of the court,” Judge Felix Frankfurter wrote of Judge Louis D. Brandeis, who served on the court from 1916 to 1939. was sitting.
Judge Jackson is only 51 and will likely serve for decades, gaining experience and prestige. The court’s membership will change in those years — four of the judges she’ll join are 67 years of age or older — and so will its direction. That could make Judge Jackson not only a trailblazing justice, but an influential and consistent one.