The Jurisprudence of Judge Ketanji Brown Jackson

KEY TAKEAWAYS

• Judge Jackson issued at least 578 judicial decisions in her eight years as a District Court judge.
• She has given inconsistent statements on whether she supports the “living constitution” theory.
• Judge Jackson has been criticized for “judicial overreach” in some cases she decided as a district court judge that were overturned by higher courts.

Supreme Court nominee Ketanji Brown Jackson has served as a federal judge for nearly a decade, most of that time as a U.S. District Court judge. She issued at least 578 judicial decisions in her eight years on the District Court. According to Westlaw analytics, during her time on the court it took Judge Jackson about 40% longer to resolve dispositive motions than her court’s median. When one of her cases was appealed, she was fully affirmed 82% of the time, which puts her at the median of President Obama’s nominees to her court.

judicial philosophy

Judges have an essential, but limited and carefully defined, role in our system of government. They should work to apply the Constitution and statutes based on the meaning of the words when they were written. Judges should be fair and impartial, judging cases and making decisions based on the facts and the law, not on personal opinions.

In contrast, activist judges believe in a “living constitution,” invent rights not clearly listed in the text, rely on amorphous concepts like “empathy” and “social justice,” and act more like legislators focused on policy than judges focused on the law. President Biden has stressed his support for the living constitution theory, which includes a broad view of unenumerated rights.

Judge Jackson has given inconsistent statements on whether she supports the living constitution theory. In 2013, during her confirmation process to become a district judge, she said she did not agree with the theory. But by last year, when she was going through the confirmation process to be a circuit court judge, her answer had become much less clear. When asked if there was a philosophy that guided her approach to making decisions, Judge Jackson answered that she did not have a philosophy. When Senator Cruz asked if she believed in the living constitution theory she answered, “I have not had any cases that have required me to develop a view on constitutional interpretation of text in the way that the Supreme Court has to do and has to have thought about the tools of interpretation.”

significant cases

Judge Jackson had more than a dozen cases overturned in her time on the district bench. Ten of her decisions were reversed in whole or in part by the D.C. Circuit, four decisions were vacated and remanded, and in three other decisions her judgment was affirmed, but the D.C. Circuit criticized the substance of the rulings. A review of some of her most significant opinions can provide a window into Judge Jackson’s temperament and judicial philosophy and what kind of justice she would be if confirmed to the Supreme Court.

Noteworthy Jackson Opinions

separation of powers

One of the most high profile cases in which Judge Jackson presided involved a dispute between House Democrats and the executive branch over whether White House Counsel Don McGahn could be compelled to testify before congressional investigators.

Judge Jackson ruled in favor of House Democrats, finding that the House Judiciary Committee had standing to seek to enforce its subpoena in federal court, the judicial branch had power to resolve the dispute between the other two branches of government, and the president did not have the power to stop his aides from complying with legislative subpoenas on the basis of absolute immunity. She wrote in her opinion: “Simply put, the primary takeaway from 250 years of recorded American history is that Presidents are not kings. … This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

The Department of Justice had not claimed monarchical powers for the president. But Judge Jackson nonetheless chose to use the same language in her opinion that liberal pundits and politicians were using to attack President Trump. At the time, newspapers were running headlines like “The Dynasty Ends with King Donald” and “King Donald? Is the President Above the Law?”

Judge Jackson’s opinion was reversed by a three-judge panel of the D.C. Circuit led by Judge Thomas Griffith, who cited her “short shrift to … separation-of-powers principles” and noted, “that’s not how Article III works.” That opinion was later reversed by the full D.C. Circuit court sitting en banc, only to have Judge Griffith rule against Judge Jackson again on remand. Ultimately the case settled before the issues were finally resolved. Conservative legal scholars remain concerned by the inflammatory and unnecessary rhetoric Judge Jackson chose to use and what it could signal regarding the tone and tenor of her opinions should she be confirmed.

immigration

Judge Jackson cited a 2019 case involving a challenge to the Department of Homeland Security’s decision to expand the category of noncitizens subject to expedited removal processes as one of the 10 most significant cases of her career. In that case, Judge Jackson issued a nationwide injunction to stop the DHS effort. In her opinion she wrote that the Trump administration’s legal argument “reeks of bad faith” and “demonstrates contempt for the authority that the Constitution’s Framers have vested in the judicial branch.”

The D.C. Circuit reversed Judge Jackson’s ruling and cancelled the injunction. The court held that, because Congress granted “sole and unreviewable discretion” to the DHS secretary to determine whether to expand expedited removal, the decision was not subject to judicial review and there was no legal basis for the injunction Judge Jackson had entered.

Labor Law

A 2018 case that Judge Jackson also cited as one of her 10 most significant involved a challenge brought by federal employee unions to three labor-related executive orders issued by President Trump. Judge Jackson found most of the provisions in the executive orders conflicted with collective bargaining rights granted under federal law, and she ruled in favor of the unions.

The D.C. Circuit unanimously reversed Judge Jackson, finding that the District Court lacked jurisdiction in the case. Judge Griffith wrote for the court, “the district court had no power to address the merits of the executive orders.” Judge Jackson has been criticized for her “judicial overreach” in this case and in the DHS expedited removal case.