On February 25, 2022, President Biden announced his intention to nominate Judge Ketanji Brown Jackson to the U.S. Supreme Court to fill the vacancy created by Justice Stephen Breyer’s retirement. Judge Jackson has had a stellar career in law practice and on the bench, and she will make history as the first Black woman justice on the Supreme Court.
Of the 115 people who have served on the Supreme Court, only three of them have been people of color, only five have been women, and there has only been one woman of color. The justices on the Supreme Court should reflect the diversity of the American public, in addition to demonstrated integrity and professional excellence, and Judge Jackson’s nomination is a historic step towards making that a reality.
This nomination comes at a perilous time for the Supreme Court’s adherence to critical constitutional rights. The Court is unraveling rights that people have relied on for decades—including voting rights, reproductive rights, and racial equality—rights that are essential for a healthy democracy.
Importantly, in the upcoming Senate Committee on the Judiciary nomination hearing, Judge Jackson will have the opportunity to publicly speak to her understanding of the fundamental principles of liberty and equality, as applied to all.
Who Is Judge Ketanji Brown Jackson?
Judge Ketanji Brown Jackson has served on the federal bench for over 9 years, first serving on the U.S. District Court for the District of Columbia for 7 years after being nominated by President Obama, and recently joining the U.S. Court of Appeals for the District of Columbia Circuit in June 2021, after being nominated by President Biden. Judge Jackson earned her J.D., cum laude, from Harvard Law School, where she was a supervising editor of the Harvard Law Review. She clerked for Justice Stephen Breyer during the Supreme Court’s 1999 to 2000 term, following clerkships with Judge Bruce Selya on the United States Court of Appeals for the First Circuit (1997-1998) and Judge Patti Saris on the United States District Court for the District of Massachusetts (1996-1997).
Judge Jackson has a record in public service that demonstrates her commitment to equal justice under law. If confirmed, she will bring needed professional diversity to the Court, serving as a former assistant federal public defender from 2005-2007, a position which included representing a detainee at Guantanamo Bay. She will be the first justice since Justice Thurgood Marshall with experience representing criminal defendants who cannot afford to hire a private attorney.
In 2010, President Obama appointed Judge Jackson to serve as Vice Chair and a Commissioner on the United States Sentencing Commission, and she was unanimously confirmed by the U.S. Senate. Prior to this nomination, she worked as an Assistant Special Counsel to the United States Sentencing Commission, and additionally spent years in private practice at Morrison & Foerster LLP, at the firm now known as Feinberg Rozen LLP, and Goodwin Procter LLP in Boston.
Judge Jackson has not heard any cases that directly address abortion rights. As a district court judge, she heard three cases involving access to contraception. However, the limited legal issues presented in these cases provide minimal insight into Judge Jackson’s understanding of the precedent underlying protections for reproductive rights.
- In 2014, she applied the Supreme Court’s recent decision in Hobby Lobby v. Burwell to a similar challenge to the Affordable Care Act’s contraceptive coverage requirement, Barron Industries v. Burwell. In the case, Judge Jackson granted the parties’ joint motion for a permanent injunction and issued a short opinion barring the federal government from requiring the employer to provide its employees with health care coverage for contraceptives to which it had a religious objection.
- In 2018, Judge Jackson ruled on two cases involving the Trump administration’s abrupt cancellation of grants funding the Teen Pregnancy Prevention Program. In Policy and Research, LLC v. U.S. Department of Health and Human Services, Judge Jackson held the Department of Health and Human Services unlawfully terminated plaintiffs’ grant funding without explanation, thus violating the Administrative Procedure Act. A month after this decision, Judge Jackson issued an opinion in Healthy Futures of Texas v. U.S. Department of Health and Human Services, again ruling in favor of grantees who brought a class action lawsuit that similarly challenged the early termination of funding.
Why Does This Nomination Matter to Abortion Rights?
Judge Jackson will be filling a seat vacated by Justice Breyer, who served on the Court for nearly 28 years as a reliable champion of reproductive rights and gender equality.
Right now, the Supreme Court has before it Dobbs v. Jackson Women’s Health Organization, in which the Center for Reproductive Rights is defending against the most direct challenge to Roe v. Wade in thirty years. The case involves Mississippi’s blatantly unconstitutional ban on abortion after 15 weeks. Mississippi has asked the Court not only to uphold the ban, but to also overturn Roe and defy nearly 50 years of precedent by ruling that there is no constitutional right to abortion. The Court recognized the right to abortion in its 1973 Roe v. Wade decision and has repeatedly affirmed it ever since.
The Supreme Court has already allowed Texas to deprive its residents of the right to abortion since September 1—almost 6 months. In a blistering dissent to Whole Woman’s Health v. Jackson (challenging Texas’s blatantly unconstitutional ban on abortion after six weeks of pregnancy), Justice Sonia Sotomayor (joined by Justice Breyer) called the situation “a disaster for the rule of law and a grave disservice to the women in Texas, who have a right to control their own bodies.” By refusing to block Texas’s ban, the Court has abandoned its obligation to enforce the Constitution and allowed a human rights crisis to continue in Texas. It also alarmingly signals that the Court may be on the precipice of overturning Roe v. Wade, which would lead half the states in the country to move to ban abortion outright and leave millions of people across large swaths of the South and Midwest without access to care.
The Court’s precedent involving fundamental rights impacts whether people can live their lives with autonomy, dignity, and equality; how they raise their families; and whether they can make personal decisions about their bodies and their futures. If the Supreme Court overrules Roe v. Wade, it could undermine key decisions guaranteeing LGBTQ+ rights and other rights that people in the United States have relied upon for over 100 years. It would unleash chaos in the courts and in states across the country as people struggle to access the essential health care they need.
While Judge Jackson will not join the bench until after the Supreme Court rules in Dobbs v. Jackson Women’s Health Organization, she will play a critical role in both interpreting and applying that decision and in adjudicating future cases advancing constitutional protections for reproductive rights.
In this moment, it is critical that we have a justice who will defend equality and liberty for everyone, including in abortion cases, and who will consider the impact of each ruling on real people’s lives. Every justice changes the Court, and every justice has the opportunity to build trust in the institution and influence her colleagues. Judge Jackson’s confirmation will have a real impact on our lives for the next generation.
What Comes Next?
Supreme Court justices are appointed by the President and confirmed through the advice and consent of the Senate. During the confirmation process, Senators will have opportunities to hear Judge Jackson speak about her record and experience, including through one-on-one meetings with all available Senators, a formal hearing on the nomination in the Senate Committee on the Judiciary, and finally, a confirmation vote before the full Senate.
Over the next few weeks, Judge Jackson will meet privately with members of the Senate. Former Senator Doug Jones (D-AL) will be her guide to the Senate.
Meanwhile, the Senate Committee on the Judiciary–made up of 11 Democratic and 11 Republican Senators–will prepare for a 4-day hearing on Judge Jackson’s nomination. This hearing will be publicly available on the Committee’s website. Supreme Court nomination hearings typically last four days, including formal introductions, testimony from the nominee, and outside witnesses testifying in support or opposition to the nomination. The hearing is an opportunity for Senators on the Judiciary Committee to question Judge Jackson about her record, experience, and judicial philosophy—and it is the public’s chance to hear from her directly.
After the hearing, the Senate Committee on the Judiciary will vote to send her nomination to the Senate floor for a final confirmation vote by the full Senate. Confirmation requires a simple majority vote (51 votes).
Finally, Judge Jackson will be sworn in as the 104th Associate Justice of the Supreme Court. She is expected to join the bench at the end of the Court’s current term.