MIAMI — As an exceptional student and formidable debater at Miami Palmetto Senior High School, Ketanji Brown Jackson could have chosen a variety of career paths but she already knew exactly what she wanted to do.
“I want to go into law and eventually have a judicial appointment,” she was quoted in the 1988 Palmetto High yearbook Echo, in a prescient piece naming her to the graduation class Hall of Fame.
She’s now on President Joe Biden’s short list for the pinnacle of all judicial appointments — a historic nomination that could make her the U.S. Supreme Court’s first Black female justice. But that isn’t the only milestone that would distinguish Jackson from almost every other justice, past and present.
The 51-year-old appeals court judge spent her formative years in the criminal defense system, notably as an assistant federal public defender in Washington, D.C. She also served as a staff attorney and commissioner on the U.S. Sentencing Commission, which dramatically overhauled draconian incarcerations for drug offenders. Occupants of the Supreme Court’s nine seats have typically been tapped from federal appeals courts, major law firms or academia with little to no background in criminal defense, the arena of law that disproportionately impacts minorities and the poor. The last Supreme Court justice to have any criminal defense experience was Thurgood Marshall, the first Black man to sit on the high court.
Miami criminal defense attorney David O. Markus, a former federal public defender who graduated from Harvard Law School in 1997, a year after Jackson, believes she would bring a fresh perspective that could serve the entire court well.
“It’s not just diversity in the traditional sense that is important; professional diversity is also critical,” Markus said. “Appointing a former defender won’t even the scales, but at least someone who has experienced what it’s like to defend a case against the overwhelming might of the federal government will have a place to be heard.”
Her own family history during the 1980s in Miami, a period that exposed her to both sides of the law, also strongly influenced the legal path she pursued as a lawyer and judge, Jackson herself has acknowledged in prior Senate confirmation hearings. She was raised in suburban comfort in the Cutler Bay area by two educators, including a mother who served as a high school principal and a father who taught history and later became the chief lawyer for the Miami-Dade County School Board. She also had two uncles and a brother who became police officers.
But there was also a criminal in the family tree, an uncle sentenced to life on a cocaine trafficking conviction in 1989, just a year after she graduated from Palmetto High.
At her 2013 swearing-in ceremony as a federal judge in D.C., Justice Stephen Breyer, the retiring justice she might replace on the court, praised Jackson, who had served as his law clerk after graduating from Harvard Law School, noting how her professional and life experiences had influenced her legal thought. “She sees things from different points of view, and she sees somebody else’s point of view and understands it,” Breyer said.
‘Presidents are not kings’
That background, along with her writing and rulings, underline why she has been reported among a handful of prominent judges that would fulfill Biden’s campaign pledge to nominate a Black female to the high court. Supporters say her record reflects a judge who is methodical in style, faithful to the law and while not an ideologue likely to side with traditional Democratic values — a major goal for progressives who hope to counter the conservative majority on the Supreme Court that was installed by former President Donald Trump and Senate Republicans.
To date, her highest profile rulings from the federal bench — and the ones likely to be most scrutinized by White House vetters and in Senate confirmation hearings — reflect close readings of the law. As a federal judge in the District of Columbia she ruled in 2019 that Trump’s former White House counsel had to obey a congressional subpoena seeking his testimony on Russian interference in the 2016 presidential election.
“Presidents are not kings,” Jackson wrote, noting that current and former White House officials owe their allegiance to the Constitution. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
More recently, as a judge sitting on the U.S. Circuit Court of Appeals in D.C., Jackson joined a panel in ruling that the Trump administration had to turn over White House records related to the Jan. 6, 2021, insurrection that aimed to stop Congress’ certification of the Electoral College vote for Biden.
In her first authored appellate opinion this month, Jackson supported a major labor organization’s challenge to the Trump administration’s significant policy change in 2020 that limits the collective bargaining rights of federal union employees. Her ruling vacated that policy but could be appealed again. Recent Republican-nominated justices have tended to favor corporate and management interests.
Past bipartisan support
Friends and observers say Jackson also had the benefit of a personality that both allies and adversaries find disarming, even among several conservative members of the Senate who have confirmed her presidential appointments to the federal courts and Sentencing Commission three times. She was elevated to the U.S. Circuit Court of Appeals in D.C. on a 53-44 Senate confirmation vote last year that included three Republicans, but not Florida’s two GOP senators. Sen. Rick Scott voted against her confirmation, and Sen. Marco Rubio of Miami did not participate in the vote.
A pivotal Supreme Court appointment, of course, looms as far more contentious. Some Republican commentators already have raised race as an issue, suggesting Biden’s pledge to elevate a Black female favors “skin color over qualifications,” without naming Jackson or other candidates or examining their records.
Sen. Roger Wicker, R-Miss., said Biden’s declaration to pick a Black female for the Supreme Court would be a “beneficiary” of an affirmative action “quota,” drawing a rebuke from the White House.
“The majority of the court may be saying writ large that it’s unconstitutional. We’ll see how that irony works out,” Wicker said, adding that whoever Biden nominates “will probably not get a single Republican vote.”
A Palmetto class president
Her own history, friends and supporters say, would indicate that Jackson is up to the challenge of a grueling confirmation process.
As far back as Palmetto High, she developed a strong work ethic and competitive spirit surrounded by brainy students who gravitated to the debate club, where she stood out as both an orator and writer in local, state and national competitions. But she wasn’t just book smart, said Miami lawyer Stephen Rosenthal, who attended Palmetto High and joined her in the school’s Hall of Fame, and also went to Harvard College and Harvard Law School with Jackson. She was popular, elected as class president three times and chosen as a “Senior Favorite” in her final year at Palmetto.
When she was dropped into the competitive, worldly campus of Harvard, “she just thrived,” Rosenthal said. She joined an improv group and took a drama class in addition to majoring in government, graduating magna cum laude. She spent a year as a reporter at Time magazine before going to Harvard Law School, where she became supervising editor of the Harvard Law Review.
“She was a formidable advocate, but one whom debate opponents respected and liked,” said Rosenthal, recalling their time as classmates at Harvard Law, where they both graduated in 1996.
That same year, Jackson married Patrick G. Jackson, a Harvard classmate who became a surgeon. He is related by marriage to Paul Ryan, the former House speaker and Republican vice presidential candidate. At her 2012 confirmation hearing to be a federal court judge, Ryan called Jackson “clearly qualified” and “an amazing person” in his testimony.
Jackson did not return to South Florida but her parents continued to work for the Miami-Dade public schools. One uncle, Calvin Ross, rose through the ranks to become the city of Miami’s police chief. Another uncle pursued a long career with the Miami-Dade Police Department and worked as a sex-crimes detective.
But she also had another uncle, Thomas Brown Jr., who got into repeated trouble with the law and would have a distinct impact on her as an adult.
Long after that uncle was sentenced to life in prison in 1989 for a cocaine trafficking conviction in Miami federal court, he reached out to Jackson for help when she began working in 2005 as an assistant federal public defender in the District of Columbia, according to a recent story in The Washington Post. She would refer his clemency case to a Washington, D.C., law firm that did pro bono work, and President Barack Obama commuted the uncle’s sentence a decade later as part of a wave of clemency cases involving nonviolent drug offenders.
Driven to serve public
Early on, Jackson’s legal career included prestigious clerkships at the federal district court, appellate court and Supreme Court levels, along with stints as a civil lawyer at major law firms in Boston and the District of Columbia.
But, as Jackson said in a Senate Judiciary Committee questionnaire last year, she felt compelled to pursue a less lucrative field of law “Given this family background, there was no question that I would gravitate toward public service at some point in my legal career,” she wrote.
She began with the U.S. Sentencing Commission, working as an assistant special counsel on legislative reforms regarding federal prison guidelines and then decided she needed to learn more about the practice of criminal law. She saw the Federal Public Defender’s Office as an “opportunity to help people in need” and “to promote core constitutional values,” noting that the rights of the accused who are unable to afford a private attorney are “entitled to assistance of counsel.”
In her Senate Judiciary Committee questionnaire, Jackson counted four federal public defender’s cases on her top 10 list of litigation disputes.
Jackson, who focused on appeals of convicted felons during her three years at the public defender’s office, stepped into the morass of post-9/11 politics when she represented a detainee named Khi Ali Gul challenging the Bush administration over his “enemy combatant” classification and detention in Guantanamo Bay, Cuba. She drafted a series of motions, including one asking a federal judge to reconsider an order dismissing his case for lack of jurisdiction. The case was ultimately consolidated with other Gitmo litigation and transferred to a different judge.
Jackson was asked whether she chose to represent the detainee or ever considered resigning from her job rather than defend him.
“Under the ethics rules that apply to lawyers, an attorney has a duty to represent her clients zealously, which includes refraining from contradicting her client’s legal arguments and/or undermining her client’s interests by publicly declaring the lawyer’s own personal disagreement with the legal position or alleged behavior of her client,” Jackson replied in her questionnaire.
In three other appellate cases at the public defender’s office, Jackson succeeded in getting a former attorney’s tax-evasion conviction overturned by showing that federal prosecutors used impermissible evidence; prevailed again for a defendant convicted at trial of unlawful possession of a firearm by proving there was insufficient evidence and improper jury selection; and obtained a new sentencing for a defendant convicted of fraud by arguing that a federal judge failed to follow rules of criminal procedure.
She then returned to the U.S. Sentencing Commission as a commissioner and vice chair, an appointment by Obama. In 2012, the president appointed her as a district court judge in Washington, D.C., and she was confirmed by the Senate the following year.
Jon Sale, a prominent Miami criminal defense attorney who serves as the 11th U.S. Circuit Court of Appeals representative on the federal sentencing advisory committee, said Jackson had the “rare distinction” of being a Sentencing Commission staff member who was later nominated by a president to serve as a commissioner.
Sale, who is also a former New York and South Florida federal prosecutor, said Brown’s record on the commission reflected an open mind receptive to “feedback from a wide spectrum of people.” He believes her clerkship for retiring Justice Breyer “likely was an early influence in the development of her analytical and pragmatic approach, rather than ideological.”
Like Justice Breyer, who was the pioneer of the federal sentencing guidelines in the mid-1980s, Jackson was known as a “consensus builder” during her time as a commissioner and vice chair, Sale said. Also similar to Justice Breyer, her public comments while serving demonstrated concern for how its actions impacted people’s lives, he said.
“When Judge Jackson returned to the Sentencing Commission, after being nominated by [President Obama] to serve as vice chair, she was a leader in the bipartisan effort to reduce penalties for crack-cocaine crimes,” Sale said. “Those efforts resulted in over 30,000 people being eligible to request reduced sentences for their crimes.”
The commission’s actions led to the largest release of federal prisoners, many people of color, in U.S. history.
Politically explosive cases
During her Senate confirmation hearing last year, Jackson also highlighted her work as a federal district court judge in D.C. from 2013 to 2021, where she presided over a number of challenges to executive agency actions and questions of administrative law.
The most politically explosive matter involved former President Donald Trump: In 2019, she ruled that former White House counsel, Donald F. McGahn II, had to answer a congressional subpoena seeking his testimony on foreign interference in the 2016 presidential election.
The Trump administration, which argued that the president has the power to prevent his aides from responding to legislative subpoenas based on absolute testimonial immunity, appealed her rulings. While the appeal was under review, McGahn eventually did testify behind closed doors last year under a compromise with House Democrats.
But as The New York Times recently reported, Jackson’s lengthy deliberation in the McGahn case “also indirectly helped him by consuming nearly a third of a year to resolve what was merely the first stage of a case that would inevitably be appealed, including writing a 120-page opinion.
“Her handling of that case was a prime example of how Mr. Trump’s legal team successfully used the slow pace of litigation to run out the clock on congressional oversight efforts, effectively winning despite court rulings against them,” the Times reported.
Jackson seems to have quickly learned a lesson about the consequences of judicial delay.
As part of a three-judge appellate panel, it took less than one month for her and colleagues to rule on the Trump administration’s challenge to a congressional subpoena for White House records related to the Jan. 6, 2021, insurrection at the U.S. Capitol. The panel ruled that the White House records had to be turned over to Congress, and the Supreme Court quickly affirmed that decision in January.
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