Review of Supreme Court nominee Ketanji Brown Jackson's opinions shows outcomes cut both ways
WASHINGTON – Soon after President Joe Biden nominated Judge Ketanji Brown Jackson for a seat on the Supreme Court her critics began casting her as a "radical, left-wing activist," a characterization based on a handful of high-profile opinions in which she ruled against President Donald Trump's administration.
But a deeper review of Jackson's opinions on the federal District Court in Washington, D.C., paints a more nuanced picture, including a number of instances in which she sided with the Republican administration and against the same left-leaning groups that now support her confirmation.
Critics often point to a 2019 decision in which Jackson ruled that Trump's former White House counsel, Don McGahn, had to testify as part of a congressional impeachment inquiry. They also note a ruling in which she ruled against a Trump effort to expand the number of immigrants in the country illegally subjected to expedited deportation.
Shortly after Biden introduced Jackson as his choice to replace Associate Justice Stephen Breyer,Senate Republican Leader Mitch McConnell worried about "the intensity of Judge Jackson’s far-left dark-money fan club." Sen. Lindsey Graham, R-S.C., who had voted for Jackson less than a year ago, lamented that the "radical left has won." Trump, who remains a leading voice of the Republican Party, dismissed her as a "radical left zealot."
But those characterizations appear to be based on two or three of Jackson's opinions out of nearly 600 she handed down during her eight years on the federal trial court. The same critics never mention that Jackson sided with Trump in a challenge to his controversial border wall. And while she limited the expedited deportations of certain immigrants, she ruled in another case that federal immigration law allowed faster removals for certain people seeking asylum.
"Some of what you're seeing in terms of positions that might potentially surprise you or cut against any sort of progressive-conservative lens is, I think, reflective of her intense respect for the modesty of her role as a trial judge," said Praveen Fernandes, vice president of the liberal-leaning Constitutional Accountability Center.
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Jackson's opinions on the Washington, D.C., District Court, to which she was nominated by President Barack Obama in 2009, will feature prominently at her Senate Judiciary Committee confirmation hearing, a four-day examination that begins March 21. Republicans will quiz her on the McGahn ruling and others like it. Democrats will frame her as a pragmatist in the mold of Associate Justice Stephen Breyer, whom she would replace on the nation's highest court.
Jackson's District Court opinions tend to avoid high-flown constitutional analyses in favor of technical, fact-heavy conclusions – typical for trial court judges. According to Lexis, the jurist she cited most often was the late Associate Justice Antonin Scalia, a hero in the conservative legal movement named to the high court by President Ronald Reagan.
Jackson has served on the U.S. Court of Appeals for the D.C. Circuit since June and has written three opinions since then. Of her two majority opinions, one dealt with whether a defense contractor could sue Iraq. In the other, Jackson wrote for a unanimous court that sided with federal unions in a dispute over labor negotiations.
While some of Jackson's past opinions may undercut criticism on the right, they provide little clarity on how she would approach work on the Supreme Court. A central thrust of the opposition to her confirmation for the appeals court last year from Republicans was that she declined to state a view on the concept of a "living Constitution," the idea that interpretation of the founding document can be adapted to modern times.
"Judge Jackson was a fine district court judge, but her judicial output provides no indication of a discernable judicial philosophy," said David Rivkin, an attorney who served in the Justice Department and White House under Republican presidents.
White House officials see Jackson's extensive work on the district court as a huge advantage, part of a resume that will add professional diversity to the Supreme Court. Only one other current justice – Sonia Sotomayor – served as a trial court judge.
That work "would bring the much needed experience of a trial court judge to the Supreme Court," said White House spokesman Ben LaBolt. "Her record makes clear that she is fair and impartial and her 578 rulings demonstrate a breadth and depth of knowledge in many different aspects of the law."
One reason her ruling in the McGahn case has received so much attention may be because it's a bit of an outlier for Jackson in terms of its style.
In the 120-page opinion, handed down a few days before Thanksgiving 2019, Jackson rejected Trump's claims of absolute immunity from congressional subpoenas and ruled the president could not prevent aides such as McGahn from responding to them. The decision landed amid an impeachment inquiry into whether Trump used his office to pressure Ukrainian officials to dig up dirt on Biden before the 2020 election.
"Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings," Jackson wrote, citing the Federalist Papers and Alexis de Tocqueville. "This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control."
Parts of her opinion were reversed by a three-judge panel of the D.C. Circuit, but later upheld when the entire appeals court considered the case. Before the questions could be resolved, McGahn struck a deal with House Democrats.
Months earlier, in a case that's received less attention on the right, Jackson sided with Trump in a lawsuit filed by environmental groups. Those groups claimed the Department of Homeland Security exceeded its authority when it waived dozens of environmental laws to build a section of the border wall in New Mexico. Jackson disagreed, holding that Congress had limited the ability of courts to intervene.
The Supreme Court declined to hear the appeal.
"We knew it would be a tough case," said Jean Su, an attorney with the Center for Biological Diversity, the lead plaintiff, "but she gave us a fair hearing."
Jackson rejected an effort in 2019 to expand the number of immigrants who could be deported on an expedited basis, without seeing an immigration judge. That process previously was limited to immigrants in the country illegally who were intercepted within 100 miles of the border and who had been in the U.S. less than two weeks.
The Trump administration sought to use that faster procedure for immigrants who had been in the country for up to two years, no matter where they were.
Jackson blocked DHS from expanding use of the procedure, finding the department likely violated a law that sets out procedures the government is supposed to follow when issuing a new regulation. The administration, Jackson wrote, didn't consider the potential impact the expansion might have on "settled undocumented non-citizens" or those who might be deported by accident.
"Unlike private citizens, government officials are required by law to engage in reasoned decision making," Jackson wrote.
A three-judge panel of the D.C. Circuit upheld part of Jackson's opinion but nevertheless allowed the expedited deportations to take place.
But in another opinion a year later, Jackson allowed the department to speed review of asylum claims, narrowing the window migrants had to prepare for initial screening interviews to one day from two. Immigrant advocates asserted that migrants held in Customs and Border Protection facilities didn't have adequate access to lawyers to prepare for those proceedings.
Jackson ruled the Trump administration had followed the required federal procedures for implementing the rule and wrote that the programs did not violate due process protections guaranteed in the Constitution.
"She's decided both for and against what you might think of as, quote, progressive causes," said Lisa Graybill, legal director at the National Immigration Law Center, a group that is supporting Jackson's confirmation. "Really what we have is a judge who applies the law, who gives it her best shot, tackles the hard questions and gives the answer that may or may not be popular with any particular constituency."
Another element of Jackson's immigration opinions that has drawn attention: She declines to use the word "alien" to describe immigrants in the country illegally, though the word is common in the lexicon of lawyers and judges as well as in federal statutes. Instead, Jackson uses terms like "undocumented noncitizen."
Jackson has also demonstrated flexibility when it comes to potential liability for police, another politically polarizing issue that regularly works its way up to the Supreme Court.
Federal courts and Congress have wrestled with the issues of law enforcement liability and accountability in the wake of several high-profile incidents involving the killing of unarmed Black people.
In 2013 Jackson was assigned a case involving a man at a liberal Occupy D.C. protest who encountered a group of conservative Tea Party demonstrators. When Anthony Michael Patterson saw the group, he cursed and continued to use profanity directed at police. U.S. Park Police arrested him for disorderly conduct.
Jackson ruled Patterson had a case and also decided the officers involved could not be shielded by qualified immunity, the legal doctrine that protects police and other government officials from liability for civil rights violations in many cases. Freedom of speech, Jackson wrote, is a "bedrock constitutional freedom."
The government settled, paying Patterson $10,000.
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Three years later, Jackson sided with law enforcement in a case involving an altercation between D.C. police and a woman attending a party that had drawn noise complaints. During the confrontation, police pushed Shalonya Kyle into a hot barbeque grill, burning her. Kyle sued for false arrest and excessive force.
Jackson ruled for the officers, asserting that because their use of force didn't violate any clearly established prohibition, they were protected by qualified immunity.
Since Biden formally announced Jackson for the seat, the Miami native and Harvard Law School graduate has called attention to her personal ties with law enforcement, noting that one of her uncles served as the police chief in her home city. Jackson's nomination, meanwhile, recently secured the support of a number of former and current law enforcement officials.
"All police officers have a duty to protect the public," a group of five dozen sheriffs, prosecutors and police chiefs wrote to the Senate Judiciary Committee on March 7. "Judge Jackson knows that, and she brings the personal perspective of having a family member on patrol and in the line of danger."
Contributing: Nick Penzenstadler