Ketanji Brown Jackson confirmed to the Supreme Court: ‘A watershed moment’

When Ketanji Brown Jackson becomes the first African American woman to serve on the Supreme Court — and the first former federal public defender — she will bring a novel perspective to the most pressing issues the U.S. judiciary must address, issues that often divide the nation, according to Northwestern Pritzker School of Law professor Tonja Jacobi.

Though Jackson’s confirmation is historic, it follows an intense series of hearings in which Republican senators accused her of lenient sentences for some criminals. Nevertheless, three Republicans — Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah — ultimately joined all 50 Democrats in the Senate in voting for Jackson’s confirmation. 

Jacobi, the co-founder of ScotusOA, a website dedicated to empirical analysis of Supreme Court oral arguments, and Northwestern political scientist Alvin Tillery, director of the Center for the Study of Diversity and Democracy, discuss with Northwestern Now the implications of Jackson’s historic confirmation at a moment of increasing political polarization in the United States. And Robin Walker Sterling, also of Northwestern Pritzker Law, explains that Jackson can have a significant impact even by writing dissents, which can articulate for Congress, litigants or activists some of the work that remains to be done on important legal questions. Sterling is associate dean for clinical education, director of the Bluhm Legal Clinic and Mayer Brown/Robert A. Helman Professor of Law.

A novel perspective

“In many ways, Jackson is a very standard judicial appointment: a Harvard-educated lawyer-turned-judge on the U.S. Court of Appeals for the District of Columbia Circuit, she has the impeccable credentials common to those elevated to the nation’s highest court,” Jacobi said. “But Jackson also offers something more. As the first African-American woman to serve on the Court, and the first former federal public defender, she will bring a novel perspective to the most pressing issues that the United States judiciary must address, issues that often divide the nation.

“Her confirmation shows that people of all backgrounds can be represented in every branch of government. And while as a Democrat-nominated justice replacing another, she may not change the balance of power on the Court, her background also matters in terms of the Court’s decision making, as studies have shown that input from a variety of perspectives helps make better decisions, avoiding groupthink. Her confirmation marks a great step forward in an institution entirely dominated by white men only 40 years ago.”

Still, discord as political strategy

“The confirmation of Judge Ketanji Brown Jackson to the Supreme Court is a watershed moment in our nation’s history,” Tillery said. “It is also a major win for President Biden, who has now kept a campaign promise to a crucial Democratic constituency and expanded the diversity of the Supreme Court. While it is understandable why the majority of Americans who wanted Judge Jackson confirmed to the Supreme Court might see her elevation as a sign that the country is finally moving past the polarization that characterized the Trump years, this would be a mistake.

“The fact that not one Republican on the Senate Judiciary committee voted to confirm Judge Jackson, who is by far the most qualified nominee in the modern era, and despite the fact that many had previously voted to confirm her to the D.C. Court of Appeals, is a sign that they remain committed to sowing discord as a political strategy.”

Today’s dissents are tomorrow’s majority opinions

“I’m feeling pride, joy and hope after Jackson’s confirmation because it means that populations whose voices are often marginalized in cases that reach the Supreme Court might not remain so marginalized,” said Sterling.

“Her experience as a district court judge, as a federal public defender and on the sentencing commission has given her a chance to observe up close how the law affects people, both for good and ill,” she said. “I hope she will continue to carry that experience with her as she considers cases, and that her colleagues will be open to hearing that perspective as they deliberate.

Jackson’s extraordinary achievement is also important symbolically at a time when the court is facing a test of legitimacy. In the past, when the court was more closely divided, leading to 5-4 decisions, there was sometimes a sense that the justices had to find common ground. Now, with a 6-3 conservative tilt, there’s less incentive to compromise.

But I believe she can still have an impact, even if she ends up writing minority dissents in many cases. There is a saying that ‘today’s dissents are tomorrow’s majority opinions.’ So we need to consider the audiences for those dissents, which can signal to Congress, litigants or activists that some work remains to be done. Given Jackson’s breadth of experience, I believe she will be well aware of all the levers that she can push.”