[In her first year on the Supreme Court, Jacksons words have
offered historical context as the majority-conservative bench has
weighed in on rights for historically marginalized groups. ]
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A VOICE THAT HAS SHAPED THE COURT AND THE COUNTRY: ONE YEAR OF
JUSTICE KETANJI BROWN JACKSON  
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Candice Norwood
June 30, 2023
The 19th News
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_ In her first year on the Supreme Court, Jackson's words have
offered historical context as the majority-conservative bench has
weighed in on rights for historically marginalized groups. _

Ketanji Brown Jackson CADC, by H2rty (CC BY-SA 4.0)

 

In her first year sitting on the U.S. Supreme Court, Justice Ketanji
Brown Jackson ensured her voice was heard. She has spoken during oral
arguments more than any other justice, written several solo dissents
and pushed for historical context that is often dismissed in the
nation’s highest court.

She stepped into her role as a justice, the first Black woman to do
so, as the court took up cases concerning the rights of historically
marginalized groups and appeared primed to undo years of legal
precedent. Even when Jackson is representing the minority opinion of
the court, she has shaped the conversation in meaningful ways.

A clear example came Thursday, when the court ended affirmative
action in college and university
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in two cases involving Harvard University and the University of North
Carolina at Chapel Hill. Jackson wrote a scathing rebuke of the UNC
opinion in a dissent that provided a review of discriminatory
practices that brought about some of the country’s key equal
protection amendments.

“With let-them-eat-cake obliviousness, today, the majority pulls the
ripcord and announces ‘colorblindness for all’ by legal fiat,”
Jackson wrote. “But deeming race irrelevant in law does not make it
so in life. And having so detached itself from this country’s actual
past and present experiences, the Court has now been lured into
interfering with the crucial work that UNC and other institutions of
higher learning are doing to solve America’s real-world problems.”

LAST YEAR: Justice Ketanji Brown Jackson’s swearing in makes
history during unprecedented time for the Supreme Court
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In many ways, this affirmative action dissent — published on the eve
of Jackson’s one-year anniversary — captured the power of her
presence on the court. Her vocal nature, historical analysis of the
Constitution and crafting of dissents that center people most affected
by national policy have made her stand out beyond the historic nature
of her appointment.

The significance of this is not lost on Black women law professors
who, 15 months ago, observed critics doubting
Jackson’s qualifications for the position
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stating that she is a diversity pick and questioning her possible bias
on race-related issues
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Now she gets to show what she’s capable of, they told The 19th.

“She is a forceful presence,” said Margaret M. Russell, a
professor at the Santa Clara University School of Law. “She seems
willing to take on really any case, and to speak her mind and forge
dissents that could one day be the majority opinion on the court.”

Jackson was sworn into her historic seat on June 30, 2022, replacing
Justice Stephen Breyer, whom she clerked for after law school. With
her addition, a multiracial group of three women make up the liberal
wing of the court for the first time: Justices Jackson, Sonia
Sotomayor and Elena Kagan. 

Jackson joined the court during a precarious time. Public confidence
in the institution had reached historic lows
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justices faced ethical concerns and accusations of political bias. The
summer of Jackson’s swearing-in, the court overturned federal
abortion rights, igniting a new sense of urgency among the public
about the court’s broad power to shape American life.

Her perspective has been front and center this year as the justices
have taken up cases that force them to consider the country’s
history on race relations.

In her dissent on affirmative action, Jackson argues that the
conservative majority is pushing a version of equality that is not
rooted in the reality of the lived experiences of historically
marginalized communities.

“It would be deeply unfortunate if the Equal Protection Clause
actually demanded this perverse, ahistorical, and counterproductive
outcome,” she wrote in the dissent. “To impose this result in that
Clause’s name when it requires no such thing, and to thereby
obstruct our collective progress toward the full realization of the
Clause’s promise, is truly a tragedy for us all.”

Her response speaks to the heart of race-conscious admissions, which
is often overlooked by conservative critics: The goal of affirmative
action is not just to bring diversity to educational institutions, but
to address the decades of systemic inequities that have shut Black
students and other students of color out of these spaces at
disproportionate levels.

“She’s been using the idea of originalism, which has always been
thought of as a very conservative notion on the court, to explain the
original meaning and intent of the Reconstruction-era amendments: the
13th 14th and 15th Amendments,” Russell said.

This approach, referred to as “progressive originalism,” or even
“Justice Jackson’s originalism” to some, appeared several times
throughout the court term.

A high-profile case about voting rights heard in October was another
notable moment. In Allen v. Milligan, the state of Alabama argued that
it had drawn its voting districts in a race-neutral way and that
overemphasis on race in creating districts violated the 14th
Amendment’s Equal Protection Clause.

Jackson pushed back on this idea.

“I understood that we looked at the history and traditions of the
Constitution at what the framers and the founders thought about, and
when I drilled down to that level of analysis, it became clear to me
that the framers themselves adopted the Equal Protection Clause, the
14th Amendment, the 15th Amendment, in a race-conscious way,”
Jackson said during oral arguments. “They were, in fact, trying to
ensure that people who had been discriminated against …  were
actually brought equal to everyone else in the society.”

Ultimately, this month the court ruled that Alabama’s congressional
voting districts likely violate the Voting Rights Act and required the
state to redraw them to add another majority-minority district.

Jackson’s words offered a “broader view of American legal
history” that challenged interpretations of the Constitution as a
more conservative document, said Michele Bratcher Goodwin,
chancellor’s professor at the University of California, Irvine
School of Law.

“To understand the Constitution is to understand that those were
anti-slavery amendments,” Goodwin said. “So when people say,
‘The Constitution was never meant to talk about race,’ that’s
historically inaccurate.”

PREVIOUS COVERAGE: The Supreme Court’s multiracial women justices
clap back at challenges to affirmative action in colleges
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Her outspokenness in these cases was not an anomaly. 

In total Jackson spoke 78,800 words this term, according to a report
by Adam Feldman
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a former statistics editor for SCOTUSblog, an independent news site
that covers the court. Her word count was significantly higher than
Sotomayor, who was the second-most vocal justice at 50,100 words,
according to Feldman’s analysis. The three liberal women justices
were the most active speakers on the court. 

For many, it’s no surprise that the two most vocal people on the
court would be the only two women of color.

“Justice Jackson hit the ground running with a kind of
confidence,” said Melissa Murray, a law professor with New York
University. “Black women should have been on this court a long time
ago, and she’s making up for lost time.”

Beyond the volume of her words, experts note that Jackson also stands
out in the way she speaks about the issues before the court. In a
departure from many other Supreme Court justices, Jackson seems
concerned with the individual human impact of the court’s decisions,
said Tonja Jacobi, a professor of law at Emory University. 

Jacobi said that among the nine justices, Jackson and Sotomayor in
particular are less satisfied with the “formalistic analysis” of
more conservative members of the court. 

This is reflected in Jackson’s dissents, including one criticizing a
ruling of the conservative majority that makes it more difficult for
people in prison to challenge wrongful convictions. 

“Forever slamming the courtroom doors to a possibly innocent person
who has never had a meaningful opportunity to get a new and
retroactively applicable claim for release reviewed on the merits
raises serious constitutional concerns,” Jackson wrote in the solo
dissent.

Though Jackson, Sotomayor and Kagan are in the ideological minority, a
strong dissent can hold power.

They can be used by legal advocates in current fights over
legislation, and they can 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.

FROM ERRIN HAINES: ‘Vote, run, win and lead’: Counting Black
women’s seats at the table
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Jackson’s dissents are distinct both for the structure of her
arguments and her willingness to write alone. She has authored five
solo dissents, which is unusual for a first-year justice, Feldman told
The 19th. This “speaks to her comfort not only writing solo, but
getting out views that she might not share with other justices —
even on the left,” Feldman wrote in an email.

But Jackson has also displayed a willingness to find common ground
with her colleagues, he continued. On the whole, she has frequently
joined the majority opinion of the court and has dissented far less
than Justices Kagan, Sotomayor and Breyer did during their respective
first terms, according to Feldman’s report. She has also joined
concurring opinions with conservative members such as Justice Neil
Gorsuch
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Feldman notes that the number of decisions where conservative and
liberal justices combine for the majority has increased from the
previous term.

“I’ll have a stronger sense after we get the next set of decisions
in, but Jackson already is showing that while she is clearly a
progressive justice, she is also unique in her views,” Feldman wrote
to The 19th. “This does not feel like the same court as we had last
term, and I think a large part of that has to do with adding Jackson
to the court.”

_Candice Norwood [[link removed]] is
Breaking News Reporter for The 19th._

_The 19th is an independent, nonprofit newsroom reporting on gender,
politics and policy. Read our story [[link removed]]._

* Ketanji Brown Jackson
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* Supreme Court
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* affirmative action
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