Less than two hours after a harrowing term ended last month, the Supreme Court welcomed a new member. Judge Ketanji Brown Jackson, who has been waiting in the wings since being confirmed by the Senate in April, took two oaths of office – and joined a court in turmoil.
“She’s coming into court at a moment of just crazy polarization after a very important term and after this huge spring leak,” said David Lat, a legal commentator, referring to the May disclosure of a draft notice. nullifying Roe against Wade. , which closely resembled last month’s decision that removed the constitutional right to abortion.
“I’m sure her colleagues will be very hospitable to her, but there may be a lot more circumspection around the building,” said Mr Lat, the author of Original Jurisdiction, a legal newsletter. and the legal profession. “That might be a little weird.”
Upon rejoining the court, Judge Jackson returned to a familiar setting. She had served as law clerk to Judge Stephen G. Breyer, whom she replaced, during the term that ended in 2000. But those were very different times — and the differences illuminate both the extraordinary transformation of the institution and the challenges its newest MP will face.
In an end-of-term preview in July, New York Times Supreme Court reporter Linda Greenhouse asked then-prominent attorney John G. Roberts Jr. for his assessment of the court’s major rulings.
“Which cases have been most visible to the public this year?” asked Mr. Roberts, who would become chief justice five years later. “Probably school prayer, abortion and Miranda, and the Tories lost all three.”
The term that ended last month also featured cases on school prayer, abortion and Miranda. This time around, however, the Conservatives won all three.
In 2000, the court was about halfway through an 11-year period without any personnel changes, the second longest period in its history.
It was by most accounts a happy place. That too has changed.
“This is not the court of that time,” Judge Clarence Thomas said at a conference in Dallas two weeks after the leak, adding, “We actually trusted each other. We were maybe a dysfunctional family. , but we were a family.
Since the arrival of Chief Justice Roberts in 2005, there have been seven new judges. The only current member of the court serving in 2000, when Judge Jackson was clerk, is Judge Thomas.
After being sworn in last month, Judge Jackson hinted that her appointment as the first black woman to serve on the court was a milestone. “I am truly grateful,” she said in a statement, “to be part of our great nation’s promise.”
Judge Breyer, in his own statement, said his successor would fit in well on the court. “I’m happy for my fellow judges,” he said. “They gain an empathetic, caring, and collegial colleague.”
These qualities, coupled with her familiarity with the inner workings of the court, may serve Judge Jackson well. But the court’s six-member conservative majority appears set to push the law decisively to the right, and its youngest member will have little ability to slow, let alone thwart, its ambitions.
The main decisions of the Supreme Court this quarter
A key term. The United States Supreme Court made several major decisions during its last term, including rulings on abortion, firearms and religion. Here is an overview of some of the key cases:
Either way, it may take some time for Judge Jackson, who has spent most of her judicial career as a trial judge, to feel comfortable with the work of the Court.
Judge Thomas, who joined the court in 1991, said he asked his new colleagues how long it would take to get comfortable. “For a person, they said it takes three to five years under normal circumstances to adjust to court,” Judge Thomas said in 1996.
This is the usual estimate. “An intellect so extraordinary that Brandeis said it took him four or five years to feel he understood the jurisprudential problems of the court,” Judge Felix Frankfurter wrote of Judge Louis D. Brandeis, who sat at court from 1916 to 1939.
But Judge Jackson’s experience as a jurist could speed up her acclimatization. Six of the 10 justices who were once Supreme Court clerks serve on the current court: Chief Justice Roberts and Justices Jackson, Elena Kagan, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
Yet the court that Judge Jackson knew in 2000 was a different place, though then as now it was dominated by Republican appointees. Indeed, it was in that sense even more unbalanced, with seven justices appointed by Republican presidents rather than the current six.
But the judges’ partisan affiliations at that time did not reliably predict their votes.
Two of the Republican-appointed court members — Justices John Paul Stevens and David H. Souter — were liberals. Two others — Justices Sandra Day O’Connor and Anthony M. Kennedy — were right-leaning moderates. Only the other three – Chief Justice William H. Rehnquist and Justices Thomas and Antonin Scalia – were staunch conservatives.
That meant the two Democratic appointees on the court — Justices Breyer and Ruth Bader Ginsburg — were very much in the mix for a court that could be unpredictable. Judge Jackson, although she will be part of a three-member liberal wing, will have less leeway.
These days, party affiliations are closely aligned with voting habits in major affairs. In rulings last month on abortion, guns, religion and climate change, the six named Republicans voted with the majority and the three Democrats disagreed.
Consider the contrasts between the decisions Mr. Roberts noted in 2000 and their 2022 counterparts.
In 2000, the court applied the principles announced in Roe v. Wade to strike down a Nebraska law that banned a late procedure that opponents call partial-birth abortion. Judge Breyer wrote the majority opinion in the 5 to 4 decision.
Just seven years later, after Judge Samuel A. Alito Jr. replaced Judge O’Connor, the court reversed course in another 5-to-4 decision, now upholding the federal prohibition law. partial abortion. After further staffing changes to the court, including the addition of three judges appointed by President Donald J. Trump, last month the court overruled Roe entirely.
In 2000, the court was suspicious of prayer in public schools, ruling that organized student-led prayers at high school football games violated the government’s First Amendment ban on establishing a religion.
“The delivery of a pregame prayer has the improper effect of compelling those present to participate in an act of religious worship,” Judge Stevens wrote for the majority in a 6-3 decision. voted with the majority.
In June, in a 6-3 decision split along partisan lines, the court ruled that a public high school football coach had a constitutional right to pray at the 50-yard line, ruling out the possibility of coercion.
Perhaps the most surprising decision of the 2000 term was the 7-to-2 decision reaffirming Miranda v. Arizona, the 1966 ruling that required police to issue the familiar warning before interrogations. The decision had been widely criticized and Congress had tried to overturn it.
But Chief Justice Rehnquist, himself a longtime critic of Miranda, wrote for the majority that the warnings were “integrated into routine police practice.” Since the Miranda decision had “announced a constitutional rule,” he wrote, a law that sought to overturn it was itself unconstitutional.
In June, in a 6-3 decision split along usual lines, the court ruled that the officers could not be prosecuted under a federal civil rights law for failing to administer the warnings. “A violation of Miranda does not necessarily constitute a violation of the Constitution,” Justice Alito wrote for the majority.
Judge Jackson might have hoped she would have the summer to settle in and prepare for major cases next term, which begin in October. But there will be activity on what critics call the court’s shadow case before then.
Indeed, the court is considering an emergency request from the Biden administration to overturn a trial judge’s decision blocking the administration’s approach to immigration enforcement. She will probably cast her first vote in this case.
Important cases await Judge Jackson in the next term. In October alone, the court will hear arguments about the role race can play in redistricting under the Voting Rights Act, the scope of the Environmental Protection Agency’s power to enforcement of the Clean Water Act and whether Andy Warhol infringed copyright by relying on an image by photographer of musician Prince.
The court will also hear challenges from race-conscious admissions programs at Harvard and the University of North Carolina. Judge Jackson, who served on one of Harvard’s governing bodies, said she would recuse herself from the Harvard case. The two cases have been combined, but the court is likely to separate them to allow Judge Jackson to hear the one against UNC
Judge Jackson’s court filing gives few clues as to how she will rule in any of the upcoming cases, though it will come as a surprise if she strays from the approach of Judge Breyer, her mentor, or of the two liberal members of the current court, the justices. Sotomayor and Kagan.
His arrival, however, could nonetheless be a welcome reset. As Judge Byron R. White liked to say, every time there is a new judge, “it’s a different court.”