First Black Woman and First Public Defender Nominated to SCOTUS: Judge Ketanji Brown Jackson

Nearly a month after Justice Stephen Breyer announced that he would soon retire from the U.S. Supreme Court, after which President Biden vowed to nominate the first Black woman to the Court, we have an official nominee. On Feb. 25, the President nominated Judge Ketanji Brown Jackson, 51, to take the seat which will be left vacant by Justice Breyer at the end of the current SCOTUS term. If her nomination is confirmed by the Senate, Judge Jackson would be the first ever Black woman to hold a seat on the highest court in the land.

The daughter of schoolteachers, Jackson was raised in Miami, Florida. She developed an interest in the law during her childhood while her father was going to law school. Her family has been on both sides of law enforcement: one of her uncles was sentenced to life imprisonment for possession of cocaine in the late 80s (stemming out of the “war on drugs“), while two other uncles and her brother worked as police officers.

A star student in high school, Jackson obtained both her undergraduate and law degree from Harvard. Following law school, and perhaps not coincidentally, she clerked for Justice Breyer at the Supreme Court from 1999 to 2000. She now serves as a Judge at the U.S. Court of Appeals for the D.C. Circuit—regarded by many as the second most influential court in the country after the Supreme Court.

Judge Jackson As A Public Defender

Jackson worked as a federal public defender in D.C. from 2005 to 2007, arguing before federal appellate courts about a dozen times. If confirmed by the Senate, the Judge would be the first former public defender on SCOTUS.

In 2007, Jackson represented Andrew Littlejohn and was able to get his conviction of felony firearm possession vacated. The Court of Appeals agreed with the defense’s argument that Littlejohn’s right to an impartial jury was violated when potential jurors were asked a compound during voir dire. The question directed potential jurors not to indicate if they or their family members had worked in law enforcement, unless they believed they would be unable to be a fair and impartial juror.

Access the full Littlejohn opinion and thousands of others with a free trial of WestLaw Edge.

At the D.C. federal defender office, Jackson represented Afghan national Khi Ali Gul, who was accused of terrorism, designated as an enemy combatant, and detained without charge or trial at the U.S. Naval Base in Guantanamo Bay, Cuba. He was sent back to Afghanistan in 2014. Asked whether she was concerned that representing Gul would allow him to return to terrorist activities, Jackson answered that “the government cannot deprive people . . . of their liberty without meeting its burden of proving its criminal charges,” and “that every person who is accused of criminal conduct by the government, regardless of wealth and despite the nature of the accusations, is entitled to the assistance of counsel.”

While Judge Jackson’s stint as a public defender was short, it is likely to draw the attention of Senators during her nomination hearing. It was only last year that Biden nominated her to the D.C. Circuit Court to fill the seat vacated by Judge Merrick Garland, who stepped down to become attorney general. In that confirmation process, Republican senators asked the Judge if she was concerned about her work as a public defender putting more gun criminals back on the streets and was questioned on why she chose not to resign from the representation of Khi Ali Gul.

Judge Jackson on the Bench

When searching for Justice Breyer’s replacement, President Biden intended to continue with Justice Breyer’s legacy—one marked by pragmatism—and was looking for someone with a “pragmatic understanding that the law must work for the American people.” Legal experts opine that, given her litigation and judicial background, Judge Jackson would be as left-leaning as the justice for whom she once clerked.

But since the Judge has only worked on an appellate court for less than a year (she’s mostly worked as a trial judge), she does not yet have volumes of legal opinions that would light on her adherence to a particular school of legal thought. In fact, she has authored only one opinion as an appellate judge. Thus, we must turn to her eight-year tenure as a judge for the D.C. federal district court in order to get a glimpse of her legal views.

In Pierce v. District of Columbia, decided in 2015, Judge Jackson ruled that D.C. violated the American with Disabilities Act when it did not evaluate a deaf inmate’s need for accommodations.

In a series of cases against the Department of Health and Human Services, the Judge held in 2018 that the Department’s sudden decision to cancel grants funding a teen pregnancy prevention program violated the Administrative Procedure Act.

Her 2019 opinion in Make the Road New York v. McAleenan granted an injunction blocking the Department of Homeland Security’s decision to designate undocumented immigrants who had been in the country for up to two years, and who were located more than 100 miles from the border, as eligible for expedited removal without a hearing.

Judge Jackson’s only authored opinion as an appellate judge was American Federation of Government Employees v. FLRA in February 2022. In it, she held that the Federal Labor Relations Authority’s (FLRA) decision to adopt a “substantial impact” standard (rather than its prior de minimis standard) for requiring federal employers to engage in collective bargaining with their employees’ representatives was in violation of the Administrative Procedure Act because it was “arbitrary and capricious.” If the Judge’s nomination to the Supreme Court is confirmed, this opinion may be both her first and last as Federal Circuit judge.

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