Ketanji Brown Jackson will be the first public defender to serve on the Supreme Court. Here’s why it matters.
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This week, I’ve turned The Briefing over to the director of our Judiciary Program, Alicia Bannon, to explain how Judge Ketanji Brown Jackson’s professional experience will make her a unique and much needed voice on the Supreme Court.
—Michael Waldman
When Ketanji Brown Jackson was applying to college, her high school guidance counselor told her not to set her sights too high. Now an experienced judge, with stints as a public defender, a U.S. Sentencing Commissioner, and a lawyer in private practice, Jackson is poised to make history as the first Black woman to ever serve on the Supreme Court, as well as the first former public defender.
Jackson’s nomination is a milestone for bringing greater diversity of life experience to the bench. Chief Justice John Roberts famously described the role of a judge as calling “balls and strikes.” Less remembered is Sen. Herb Kohl’s response that “no two umpires . . . have the same strike zone.” As Kohl explained, the experiences judges bring with them to the bench inevitably shape how they understand the contours of the law and facts in front of them.
That’s why having judges who have seen different aspects of the American experience is so important
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. Federal district court Judge Carlton W. Reeves put it well: “Where people come from, what they have lived through, what they do with the time they have, and who they spent that time with — it all matters.”
One of the many ways that Jackson would bring overlooked perspectives to the Supreme Court is through her experience representing criminal defendants. The Supreme Court plays a major role in defining the constitutional rights of defendants — from interactions with the police, to the rights of the accused during trial, to the scope of permissible punishments — as well as in interpreting federal criminal laws. Every year, the Court considers thousands of petitions in criminal cases.
But while prosecutors are well-represented on the Supreme Court (on the current Court, Justices Samuel Alito, Sonia Sotomayor, and Clarence Thomas all served as prosecutors), the Supreme Court has never had a justice with experience as a public defender.
The last justice with substantial experience navigating the criminal justice system on behalf of poor defendants was the civil rights icon Thurgood Marshall, who retired from the Court more than 30 years ago. It’s part of a broader pattern: across federal and state courts, judges with defender experience are underrepresented in favor of those with prosecutorial and corporate backgrounds.
This is an experiential chasm. Justice Sandra Day O’Connor described how important Marshall’s “ear of a counselor” was for the Court — someone “who understood the vulnerabilities of the accused and established safeguards for their protection.” It can be hard to see the unfairness baked into our criminal justice system from behind the bench. And not surprisingly, research suggests that judges with criminal defense experience often approach criminal cases differently.
Last year, after eight years as a federal trial court judge, Jackson appeared before the Senate for a hearing to be confirmed to the DC Circuit Court of Appeals. She reflected on the “direct line” between her public defender experience and her approach as a judge, including how she took “extra care” to make sure the defendants appearing before her understood what was happening, having seen firsthand how little her clients understood the legal system. “I think that’s really important for our entire justice system.” It is.
One new voice is unlikely to transform an increasingly radical conservative majority on the Supreme Court. But giving defenders a seat at the table — and a voice in dissent — still matters. It’s a step towards achieving courts that deliver on the promise of equal justice for all, and a landmark worth celebrating.
Democracy
The Urgent Need to Replace Aging Voting Machines
Like any computerized system, voting machines can “age out” of use. For electronic voting machines purchased since 2000, the expected lifespan for the core components is between 10 and 20 years. Adding to the problem is a growing number of machines that have been discontinued, making them difficult to maintain and repair. A new report from the Brennan Center and Verified Voting examines the state of our voting systems, estimating that the cost of replacing outdated equipment over the next five years will easily top $580 million. Federal funding is badly needed to ensure that Americans are voting on machines that are up to date. Read more
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Another Threat to the Voting Rights Act
Last week, a federal judge dismissed a challenge to proposed congressional maps in Arkansas. The Arkansas Public Policy Panel and the state’s NAACP chapter had filed the lawsuit under Section 2 of the Voting Rights Act on the grounds that the new maps would limit representation for Black Arkansans. But in a departure, the court said that only the Justice Department could bring such challenges. Michael Li explained the troubling ramifications of the ruling: “Most VRA lawsuits are brought by private plaintiffs, and you would be totally dependent on the Justice Department being willing to intervene in a particular situation, which they might not do for resource reasons or they might not do for political reasons,” he said. THE HILL
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Constitution
We’re Suing DC Police for Transparency
Public records request lawsuits against police departments from Los Angeles to Baltimore to Boston have resulted in crucial disclosures relating to police departments’ use of social media for surveillance and monitoring. This information is crucial for protecting people’s privacy and First Amendment rights, as well as guarding against discrimination and abuse by police. Today in Washington, DC, the Brennan Center and Data for Black Lives sued the city’s Metropolitan Police Department to enforce a Freedom of Information Act request for documents relating to its social media policies and practices. “With the filing of this FOIA lawsuit, we’re signaling to police departments that we won’t rest until their social media monitoring practices are brought to light,” Rachel Levinson-Waldman and Mary Pat Dwyer write. Read more
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Coming Up
VIRTUAL EVENT: Millennials, Gen Z, and Civic Engagement
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Thursday, March 10, 6–7 p.m. ET
Leveraging digital literacy, protests and demonstrations, and public debate on social media, Millennials and Generation Z have a distinct way of engaging in our society. How does their reimagining of civic engagement in America challenge tradition? How will it reshape our democracy? Join us for a live discussion with Theodore R. Johnson, director of the Brennan Center’s Fellows Program; Elan C. Hope, Brennan Center fellow and professor of psychology at North Carolina State University; Ruby Belle Booth, Brennan Center fellow; Layla Zaidane, president and CEO of the Millennial Action Project; and Laura Barrón-López, Politico White House correspondent. The conversation will explore the opportunities found when we engage across generations to make our country stronger. RSVP today
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Produced in partnership with New York University’s John Brademas Center
VIRTUAL EVENT: Social Media’s Free Speech Problem
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Thursday, March 24, 6–7 p.m. ET
The problem of misinformation on social media has ballooned over the last few years, especially in relation to elections. The result has been further polarization of our already divided country. How do we control this false speech while protecting the First Amendment — and our democracy? Join us for a live discussion with Richard L. Hasen, leading expert on election law and author of the upcoming book, Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It
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The discussion will explore how social media companies can solve this problem without shutting down the essential free flow of ideas and opinions. RSVP today
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News
Alicia Bannon on the Ohio Redistricting Commission refusing a court order to produce fair maps // NEWSWEEK
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Michael Li on court decisions on redistricting in Pennsylvania and North Carolina // WALL STREET JOURNAL
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Ian Vandewalker on trends in PAC spending // USA TODAY
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Michael Waldman on the State of the Union // WASHINGTON POST
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