She has always wanted this. Ketanji Brown Jackson, President Biden’s nominee to fill the supreme court seat left vacant by the retirement of Stephen Breyer at the end of this term, said that she wanted to become a judge one day in the yearbook from her Miami high school. By then she was already a champion in national oratory competitions, sharpening the skills of rhetoric and cadence that are the stock and trade of ambitious lawyers. Her parents – an attorney and a school principal – saw their daughter’s potential, and helped her to hoist herself from her middle-class origins onto the path followed by ambitious lawyers from more patrician backgrounds. She went to Harvard for undergrad and then to Harvard Law, eventually clerking on the court for Breyer himself – a justice known to be particularly picky with his clerkships.
She seems to have pursued the law with single-minded devotion since she was very young, committing herself to the profession with all the passion and devotion of a vocation.
But her legal career took her to places most supreme court justices’ careers have not: In addition to her standard bona fides in private practice and later on the federal bench, she served on the United States Sentencing Commission, working to assess federal criminal sentencing practices and advocating for reduced sentences for drug offenders. Later, she served as a federal public defender in Washington. This makes her the first former public defender nominated to the court, and the first since Thurgood Marshall with extensive criminal defense experience. Her nomination signals a respect for a field of legal practice with great moral authority but little respect from the legal establishment: advocating for the rights of criminal defendants and the poor.
When Biden nominated Jackson to a seat on the DC circuit court just last summer, the post was widely seen as a stepping-stone to the supreme court itself: Jackson had already been all but anointed as Breyer’s successor. She sailed through that confirmation, even bagging three Republican votes. The ease of her last appointment, even amid the backdrop of her future one, suggested that Senate Republicans had not been able to manufacture controversy from her record, a failure on their part that suggests remarkable discipline on Jackson’s. She seems to have behaved in a manner becoming a federal judge her whole life. It’s as if she was born wearing a black robe.
And yet for much of the nation’s history, Judge Jackson’s story would have been impossible. Jackson is the first Black woman to be nominated to the supreme court, fulfilling a Biden campaign promise, and she has made her way in a legal profession – and indeed, in a country – that is accustomed to discarding Black women’s talent. In many ways she represents America’s great, if usually thwarted, promise: that hard work by individuals, combined with a moral arc of national history that bends toward justice, can deliver talented and worthy people to success despite the injustices imposed on them for their race, their sex, or their origins. That there has never been a Black woman on the court before is testament to how rarely this promise is kept: Jackson is not the first Black female legal mind worthy of the court, and if she is confirmed, she will serve alongside more than one white man of lesser intellect and character. But though she is the first, she will not be the last.
When Jackson joins the court, all of the Democratic appointees will be women. Two will be women of color. That gender disparity is likely to be especially stark in abortion and LGBT rights cases the coming years, as the conservative legal movement builds off its expected success in Dobbs v Jackson, the case that will overturn Roe v Wade this summer, and sets its sights undoing the privacy right that the court has used to protect sexual freedoms. Over its coming terms, the court – whose extreme right bent will not be changed by Jackson’s addition – is likely to approve further abortion bans and restrictions, cut off contraception access, and roll back marriage equality, trans rights, and the legality of gay sex.
Dissenting will be three women who stand for the rights of Americans to live lives free of the notion that biology must be destiny, and unencumbered by sex role stereotypes. These women will stand for these freedoms, and others, while a majority of six conservative justices enshrine male supremacy and forced birth into federal law. Jackson’s opinions will likely be oriented more towards young lawyers and the general public than towards her conservative colleagues, who have shown themselves petulant and unwilling to engage in good faith with the arguments of the liberals. It is not an enviable task that Jackson will face on the court, but we can be grateful that she is willing to take it.
Nor will her confirmation be easy. Though Jackson has long been the favorite to replace Breyer, in recent weeks a group of conservative Democrats, led by the influential congressman Jim Clyburn, made a concerted push to encourage Biden to nominate Judge Michelle Childs, a federal district court judge from South Carolina. Childs’ nomination would have been a favor to Clyburn, whose endorsement of Joe Biden in the 2020 presidential primary is widely credited with reviving Biden’s faltering campaign. But Childs had sparked weariness from the left for her past decisions regarding criminal sentencing and her private practice work on labor disputes. Perhaps it was this criticism that endeared her to Senate Republicans, who issues warm words about Childs and dangled a bipartisan confirmation vote in front of Biden. Now that their preferred candidate has been rejected in favor of one more amenable to progressives, conservatives have endeavored to paint Jackson has an extreme leftist.
“If media reports are accurate, and Judge Jackson has been chosen as the supreme court nominee to replace Justice Breyer, it means the radical left has won President Biden over yet again,” tweeted Lindsey Graham, a South Carolina Republican on the Senate judiciary committee who voted to confirm Judge Jackson to the DC circuit last summer.
Jackson’s actual jurisprudence reflects scrupulousness more than radicality. While on the DC circuit this past year, Judge Jackson presided over a case called Committee on the Judiciary v McGahn, a lawsuit concerning the Trump administration’s attempt to sabotage a congressional investigation. It’s the kind of case that ambitious judges pray to avoid: high-profile and politically charged, with one party that would declare any unfavorable outcome a process violation.
Knowing she was under a microscope, Jackson delivered a measured, thorough, and lengthy ruling declaring that former White House counsel Don McGahn could be compelled to testify before Congress. It was the kind of point-by-point argument meant to be ironclad even to the least sympathetic of readers. But the opinion also contained memorable flashes of rhetoric. “Presidents are not kings,” Jackson wrote. “They do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.” It was the kind of writing that would represent the pinnacle of many judges’ careers. For Jackson, it may be only the beginning.
Moira Donegan is a Guardian US columnist
