Predicting the Path of the New Justice
Ruth Marcus has this column in the WaPo (behind a paywall) on the impact of Judge Ketanji Brown Jackson on the Supreme Court. Ms. Marcus has covered the high court for many years.
In addition, justices, male or female, aren’t fungible. Even if they can be placed into broad categories of liberal or conservative, they bring different passions and different life experiences to the bench. Jackson’s experience as a criminal defense lawyer, member of the U.S. Sentencing Commission and trial court judge gives her a perspective different from that of her colleagues. It’s reasonable to imagine Jackson emerging as an ally of Justice Sonia Sotomayor, especially on criminal law issues, where Breyer and Justice Elena Kagan have been slightly more moderate. And, as I wrote the other day, she also could emerge as another powerful voice in dissent, joining Sotomayor and Kagan in a forcefulness and passion that Breyer didn’t always display.
While Jackson, assuming she is confirmed, will be in the history books as the first Black female justice, the more immediate significance of her arrival at the Supreme Court might be as the only serving justice — and the first in decades — with significant experience representing criminal defendants and grappling with the consequences of the criminal justice system on communities of color.
In plainer English, Marcus implies that Justice Jackson is likely to vote consistently for the defendant on any remotely debatable questions of criminal law, more so than Justice Breyer did and more like Justice Sotomayor does. And while “grappling with the consequences of the criminal justice system on communities of color,” will she grapple with the consequences of crime and our failure to control it on all communities, including and especially “communities of color”? I am not optimistic at this point, though I hope to learn more as the nomination process proceeds.
As the saying goes . . . There’s nothing harder to predict than the future.
While any judge’s background and experience certainly affects her perspective, I’ve grown pretty cautious about making cliché-based assumptions about what kind of judge a former defense lawyer (or prosecutor, for that matter) will turn out to be.
Yes, some criminal defense attorneys-cum-judges carry their true-believer values onto the bench—often with disastrous consequences. (A certain former Chief Justice of California comes readily to mind.) But not all criminal defense lawyers are true-believers. Some are very practically-minded, level-headed thinkers who happen to start their careers as defense lawyers, and being pretty good lawyers, they prove to be very effective at their job, stick with it for the long-haul, and maybe even achieve some notariety for their efforts. Once they take the bench, they prove to be very capable in that role as well—perhaps in large part because they’ve heard and seen it all, and aren’t easily snowed.
Former prosecutors, on the other hand, can sometimes grow a bit self-conscious about how their background affects (or, perhaps more precisely, about how the litigants, the bar, the public, and the media might perceive how their background affects) their rulings. In response to that nagging concern, they sometimes compensate, even over-compensate—an impulse that occasionally causes them to issue flatly erroneous rulings. It’s a funny business, this law thing.
It’s possible. Hopefully we will learn more as the nomination process proceeds, and the process will not be a rubber stamp.
I am a bit concerned that some conservatives in Congress are too complacent with their six-Justice “majority.” One retirement or death during the Biden Administration could put us back in the situation we had a few years ago with a single “swing vote.” That situation produced some truly appalling rulings.